U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vena H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020005332 Hearing No. 430-2019-00541X Agency No. HS-TSA-02300-2018 DECISION On September 17, 2020, 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 August 10, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Norfolk International Airport in Norfolk, Virginia. Complainant requested, and was assigned, the 4:00 a.m.- 12:30 p.m. shift; her shift was later modified to 3:45 a.m.-12:15 p.m. Complainant was aware that she was required to clock in at 3:45 a.m., so that her station could be opened at 4:00 p.m. ROI at 379, 411. She was also expected to attend briefings after check in. Id. at 379. 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. 2020005495 2 Agency officials communicated with her, on a number of occasions, regarding the importance of timeliness and the unacceptability of tardiness. Id. at 384-86. Despite the communication, between November 16, 2017, and February 27, 2018, Complainant was tardy for work 25 times and charged absent without leave (AWOL) for two business days, for a total of 16 hours. Id. at 65, 371-72, 387-89. On April 3, 2018, Supervisory Transportation Service Officer (Supervisor1) met with Complainant to issue her a notice of five-day suspension, as recommended by another Supervisor (Supervisor2). Id. at 53. The proposed five-day suspension charged her with AWOL once and 21 instances of tardiness. Id. at 53. This was later rescinded. Id. at 368. Supervisor2 was unaware of the reason that the proposed five-day suspension was rescinded, but she thought it was because the table of penalties warranted a higher level of discipline. The record includes the table of penalties which affords a penalty of a four-day suspension up to removal after the third instance of an unexcused tardy. After one instance of AWOL of up to one day, the table of penalties recommends a letter of counseling or letter of reprimand; after the first instance of AWOL of one to two days, the table of penalties provides a letter of reprimand to a four-day suspension. Id. at 554. On June 8, 2018, Assistant Federal Security Director (Assistant Director1), the deciding official, met with Complainant and issued a proposed 10-day suspension because Complainant was AWOL on two days and tardy on 25 instances. Id. at 54, 65, 372. In her rebuttal, Complainant stated, “On occasions I have been there to open up even when tardy. Also, more times than none, there are no briefings held.” She went on to state, “I acknowledge my tardiness and have corrected the situation. So[,] to receive a pre-decisional after correcting the situation is disheartening.” Finally, she asserted that changing her scheduled from a 4:00 a.m. start time to a 3:45 a.m. start time made it too difficult to be on time for work. Id. at 84, 409. She further argued that on February 9 and 10, 2018, the starter on her car failed and she had to replace it. Id. at 410. She acknowledged that this was not the first time that her car had been the cause of her missing work, and that it was her responsibility to find transportation to work. However, she stated that car issues were out of her control. Id. at 410. Complainant asserted that it was not her fault that there was no annual leave available for her to use, and this was evidence of retaliation by the Agency. Id. at 410. Complainant identified that another employee who had been afforded the ability to utilize annual leave for car trouble without being disciplined. Id. at 56. The Transportation Security Manager (TSM) countered that this was a different situation because the employee had one instance of car trouble and no other attendance concerns. Id. at 76. Complainant also noted that her leave request form (OPM-71) had been altered from when she originally signed it. Complainant asserted that the form originally stated “no [annual leave (AL)] available.” In March 2018, she states that the form was changed to “no AL avail[able] due to operational needs and employee is on [overtime].” Id. at 91. Assistant Director1 looked into the matter and found that the responsible party did not know whether she had been given the edited OPM-71 or not. He reasoned, however, that this was not a lack of candor nor did it void the proposed suspension. Id. at 92. 2020005495 3 Complainant also expressed that the proposed suspension included discipline that she did not receive. Id. at 92. Assistant Director1 also addressed this issue. He contacted another Assistant Director (Assistant Director2) regarding the issue, asserting that if this were the case, he would mitigate the penalty. Assistant Director2 notified Assistant Director1 that Human Resources Specialist (Specialist) made the mistake in drafting the letter. Id. at 66, 92. HR Specialist stated that he accidentally added a disciplinary action that should have been removed per a settlement agreement between the Agency and Complainant. After he was informed of his mistake, he removed the disciplinary history in question from the letter. Id. at 99. On June 19, 2018, Complainant was notified that she was receiving a 10-day suspension, but the penalty was mitigated to six days. Id. at 54, 85, 414. Complainant states that Assistant Director1 told her this was because she arrived before peak hours and her tardiness did not affect the mission; Assistant Director1 specifically denies making such a statement. Id. at 54, 91. Assistant Director1 later mitigated the suspension to five-days, due to the error in the disciplinary history as laid out in the original proposed suspension letter. Id. at 88 In July 2018, Complainant was issued an amended notice of suspension, which mitigated the penalty to five days. Complainant declined to sign the amended notice, and it was administratively signed by Supervisor1. Id. at 427-438. On Monday, August 6, 2018, Complainant submitted her resignation, effective that day, citing personal and professional reasons. Id. at 106. She stated, in her sworn affidavit, that she was “disgusted and appalled with the action of management official[s]. I no longer had trust in management…I was being targeted especially due to prior EEO cases being a union rep[resentative].” Id. at 55. On November 15, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 3, 2018, Complainant was issued a proposed five-day suspension; 2. on June 8, 2018, Complainant was issued a proposed 10-day suspension; 3. on July 19, 2018, Complainant became aware that management altered, and fabricated documents used in the decision to issue her a 10-day suspension; and 4. In August 2018, Complainant was subjected to constructive discharge. 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). 2020005495 4 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 8, 2020, motion for a decision without a hearing and issued a decision without a hearing on July 8, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant reiterates her claim that her OPM-71 document was altered after she signed it. Complainant further argues that the proposed 10-day suspension contained inaccuracies regarding documented discipline that she had never been issued. Complainant identifies a comparator who she asserts was not disciplined, despite similar misconduct. Finally, Complainant charges that her 10-day suspension was too harsh and that she has lost trust in management’s ability to perform an unbiased and impartial investigation. The Agency counters that Complainant could not establish a prima facie case of discrimination or retaliation. Even if she could make a prima facie case, they argue, the relevant Agency officials had legitimate nondiscriminatory reasons for their actions, and she cannot prove pretext. With regard to the Agency employee that Complainant identified, had both different circumstances surrounding her absence and she had a different supervisor than Complainant. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). 2020005495 5 Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has offered no such dispute of material facts. Therefore, we conclude that the AJ properly determined that the matter was appropriate for summary judgment. Disparate Treatment-Claims 1, 2, and 3 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). As a preliminary matter, we find that a full and fair reading of Complainant’s complaint shows that she argued that “falsified” documents raised in claim 3 were utilized to justify her suspension in claim 2. Specifically, Complainant alleged that the Agency relied on an allegedly fabricated and altered OPM form 71 as well as erroneous inclusion of prior disciplinary action on arriving at the 10-day suspension. Therefore, we find that claims 2 and 3 should be analyzed together as they relate to the same 10-day suspension. 2020005495 6 Assuming, arguendo, that Complainant has established a prima facie case of discrimination and retaliation, we now turn to the Agency to assert a legitimate, non-discriminatory reason for their actions. In the current case, we find that the Agency has done so. Specifically, Complainant had a substantial history of tardiness and two working days of AWOL. Her tardiness kept her from being at her workstation in a timely manner and prevented her from attending necessary briefings. The record indicates that Complainant was counseled on multiple occasions and was made aware of the necessity of timeliness in the Agency. Therefore, the Agency issued the Complainant a proposed five-day suspension and, after it was rescinded, a 10- day suspension. Finding that the Agency has met its burden, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Complainant acknowledged that she was tardy for work on numerous occasions, and that it was her responsibility to get to work and be on time. Complainant argued, rather, that her periods of AWOL were due to car problems and that her tardiness did not impact the business. She further argued that the suspension was too harsh. The evidence, however, demonstrates that the Agency acted in a manner consistent with Agency policy based on Complainant’s tardiness. Complainant also pointed to a comparator, noting that she was also absent due to car trouble and was allowed to use leave. However, the comparator had a different supervisor and had one instance of car trouble with no other issues surrounding her attendance. To demonstrate that another employee is a similarly situated comparator, Complainant must show that all relevant aspects of the comparator's work situation were nearly identical to her own. Martinez v. Dep't of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1, 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). As the proffered comparator did not have a history of 25 instances of tardiness in less than a year and had a different supervisor, we find that Complainant does not provide evidence of pretext. Regarding claims 2 and 3, in the OPM-71 form, Complainant argued that the first copy she received stated “no AL available” and the second copy she received was changed to “no AL available due to operational needs and employee is on overtime”. Assistant Director1 followed up on this issue and reported that he was told by the relevant Agency official that it was unclear whether she received the first copy. Assistant Director1 further found that, even if such a modification occurred, it did not void the proposed disciplinary action. As any additional characters did not alter the outcome, there is no evidence that the Agency’s reliance on the OPM- 71 constituted pretext for the 10-day suspension. Complainant also asserted that the Agency improperly included reference to a prior disciplinary action in issuing the 10-day suspension as alleged in claims 2 and 3. The record indicated that Specialist drafted the letter and mistakenly included prior discipline that was rescinded due to a prior settlement between the Agency and Complainant. Assistant Director1, after being alerted to this discrepancy by Complainant, contacted Assistant Director2, who followed up with Specialist. Specialist corrected the letter. 2020005495 7 Upon finding out that the discipline in question was included by mistake, Assistant Director1 mitigated the penalty outlined in the suspension. The Commission has consistently held that a mistake, alone, without evidence of animus, is insufficient for a finding of discrimination. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). Here, Complainant has not presented any evidence that any errors were committed due to her inclusion in any protected class. As such, the Commission finds that there was no discrimination in the error contained on the documents. Therefore, based on our review of the record, we determined that Complainant has not provided evidence that any of the actions taken by the Agency were due to her membership in a protected class, the Commission does not find discrimination on the part of the Agency. Constructive Discharge - Claim 4 The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). In this case, the Commission finds that Complainant has not met the elements needed to prove constructive discharge. While Complainant was upset with the suspension and the paperwork errors, we do not find that these arise to conduct that is so egregious that a reasonable person in her position would have found the working conditions intolerable. Moreover, as outlined above, there is no evidence that the Agency’s conduct constituted discrimination. As Complainant has not met the elements, we find cannot find that Complainant was subjected to constructive discharge. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision to enforce the AJ’s decision finding no discrimination. 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 2020005495 8 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 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. 2020005495 9 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 February 15, 2022 Date