U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022002120 Agency No. HS-TSA-00571-2021 DECISION On March 10, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer (STSO), SV-1802, at the Watertown Regional Airport (ATY) in Sioux Falls, South Dakota. On April 16, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (idiopathic intracranial hypertension) and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022002120 2 On March 2, 2021, management demoted Complainant from her Supervisory Transportation Security Officer (STSO) position to a Transportation Security Officer (TSO) position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On January 5, 2021, Transportation Security Manager-1 (TSM-1) issued Complainant a Notice of Proposed Removal containing the charges of failure to follow instructions, inappropriate conduct, and absent without leave (AWOL). The failure to follow instructions charge identified two incidents. The first incident occurred on October 27, 2020, in connection with Complainant parking her vehicle in front of an ATY terminal building while she was inside working which violated a city ordinance. The second incident occurred on December 6, 2020, when Complainant called to inform TSM-1 that she was the only supervisor on duty and that according to the On-the-Job Training Coach (OJT-C) guidelines, Complainant could not perform both supervisory and OJT-C Guidelines at the same time. TSM-1 instructed Complainant to perform her supervisory duties and to assign TSO-1 to only Phase 1 duties. However, Complainant coached TSO-1 in violation of TSM-1’s instructions and OJT Guidelines. The inappropriate conduct charge related to Complainant’s actions on October 27, 2020. Specifically, TSM-1 stated after the ATY manager asked Complainant to move her vehicle to a parking lot instead of in front of the airport, Complainant texted a reply of “FFS,” an acronym for “For Fuck’s Sake.” Later that day, after TSM-1 had a discussion with Complainant about the inappropriate text message, Complainant confronted the Airport Manager in front of one of his employees and stated she had been directed to formally apologize, but then repeatedly used the work “fuck” in her discussion with him. The AWOL charge contained three specifications: on November 8, 2020, Complainant reported to work 24 minutes after the start of her shift; on November 9, 2020, Complainant arrived 27 minutes after the start of her shift; and on November 10, 2020, Complainant arrived 23 minutes after the start of her shift. On all three occasions she was charged .25 hours of AWOL. TSM-1 considered that Complainant had not acknowledged any wrongdoing or accepted responsibility, which led her to conclude that rehabilitation was not likely. On March 2, 2021, the Assistant Federal Security Director-Screening (AFSD-S) mitigated the proposed removal to a reduction in pay band and pay rate. He stated he reviewed the evidence and considered Complainant’s responses to the charges and found the preponderance of the evidence supported the charges. AFSD-S stated he considered the seriousness of the charges and took into consideration Complainant’s failure to adhere to policy, the lack of professionalism, and the lack of leadership. He stated that he found her prior 14-day suspension for failure to follow instructions to be an aggravating factor and explained her continued pattern of behavior demonstrated a lack of ability to continue in a leadership or supervisory position. 2022002120 3 AFSD-S explained he also considered her 15 years of service, her promotions, awards, and other satisfactory performance and decided a reduction in pay band/rate was appropriate. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. The Agency proposed Complainant’s removal due to the incidents on October 27, 2020 and December 6, 2020, when she failed to follow instructions and exhibited inappropriate conduct and her three consecutive days of absent without leave from November 8-10, 2020 (partial days). The Agency considered Complainant’s disciplinary record, including a prior 14-day suspension for failure to follow instructions. In light of her 15 years of employment, including an otherwise satisfactory performance, the proposed removal was mitigated to a demotion as the Agency determined her actions revealed her lack of ability to continue in a leadership or supervisory position. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 2022002120 4 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2022002120 5 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 27, 2023 Date