Sylvia B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jan 13, 2017

0120142913 (E.E.O.C. Jan. 13, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sylvia B.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120142913
Hearing No. 470-2013-00046X
Agency No. HSTSA008642013

DECISION

On August 13, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 2, 2014, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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) at the Port Columbus International Airport (CMH),
Columbus, Ohio. On April 12, 2013, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of sex (female), disability (back injury), and age
(48) when: (1) on March 27, 2009, she was made to work several screening functions before
she was allowed to work overtime; (2) on multiple dates in June 2009, the rotation log was
checked to see if she had written down her exact times for break and lunch and these times
were checked by one of the Transportation Security Managers (TSM) (S1); (3) on multiple
dates between June 2009 and April 2012, S1 made comments that she took more breaks than

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.
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allowed, and that she took extended breaks; (4) on June 23, 2009, S1 told her that she hadn’t
been in a useful position all day; (5) on April 17, 2010, she was told by S1 that all paperwork
has to be locked up in the podium, and the keys cannot be left out in the open. She was also
told that if she was caught doing this one more time she would be disciplined; (6) on April 20,
2010, she confronted S1 regarding the discrepancy between her actual start time and the time
he mentioned to her in front of other managers. He told her, “If you’re calling me a liar, get
the f—k out of my office;” (7) on April 20, 2010, when she sat in her usual seat, S1 instructed
her to sit at the table. When she asked him why, he replied, “get up to the table, now;” (8) on
August 12, 2011, she arranged with one of the TSM for coverage for her scheduled overtime.
She was removed from the overtime list because the TSM said this was her second call-off; (9)
on September 28, 2011, S1 told a co-worker that Complainant was the biggest rat in the
airport, because she informed them when the procedures are not being followed correctly; (10)
on October 21, 2011, she was talking to S1 about her lead TSO. In the middle of her
explanation a male STSO interrupted the conversation and S1 immediately started a
conversation with him. Complainant waited 10 minutes to finish her conversation and finally
left the office; (11) on October 28, 2011 and November 24, 2011, when Complainant
requested annual leave, S1 asked how badly she wanted the day off, he then said he better see
something on his personal phone; (12) on multiple dates between October 2011 and February
2012, while in the checkpoint, S1 would refuse to talk to her or acknowledge her presence
even though he talked to her male co-workers; (13) on May 3, 2012, she informed the TSMs
that she had hurt her back on May 1, 2012, carrying a box into the checkpoint. She asked for
Office of Workers’ Compensation Program paperwork multiple times before it was finally
given to her in June 2012; (14) on September 7, 2012, when she brought her Performance
Accountability Standards System files up from the managers’ office she was instructed by S1
that she could not have them up on the floor, and had to return them immediately; (15) on
September 7, 2012, S1 put her on leave restriction; and (16) on October 10, 2012, she was
terminated.

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). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, 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.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

Even assuming that Complainant met her prima facie burden for disparate treatment, the FAD
properly found that the Agency articulated legitimate non-discriminatory reasons for its actions
with respect to Claims 1, 15, and 16. With respect to Claim 1, one of the TSMs (S2) (female)
explained that all STSOs were required to perform screening functions every 14 days in order
to maintain certification or they would not be permitted to act in the capacity of an STSO.
Another TSM (S3) (female) further provided that when an officer was off work or not engaged
in screening functions for a period of time, the officer has to work a rotation with a mentor or
coworker. With respect to Claim 15, the Assistant Federal Security Director (AFSD) (male)
and S1 explained that Complainant was placed on leave restriction because she had established
a pattern of unscheduled leave and had an unacceptably high amount of unscheduled leave.
The record shows that between May 5, 2012 to September 5, 2012, Complainant took
unscheduled leave 33 times, and had the most use of unscheduled leave of all 28 STSOs. This
pattern of leave usage persisted despite several attempts by Complainant’s managers to address
it, including two informal letters of counseling regarding her attendance issued in August 2010
and April 2012. As a result, Complainant’s supervisors had sufficient reason to believe that a
pattern of leave abuse existed which needed to be addressed, and they determined that a letter
of leave restriction was the least severe corrective measure available which would act to
correct Complainant’s absence and leave issues. In addition, S1, S2, and AFSD all testified
that Complainant’s sex, age, and medical condition did not play a role in the issuance of the
leave restriction.

With respect to Claim 16, Complainant asserts that her termination was motivated by her back
injury rather than her sex or age. However, the record shows that Complainant had used 178
hours of sick leave from January 1, 2012, through September 5, 2012. Management noted in
the proposed termination that Complainant had 17 instances of unscheduled sick leave which
were not substantiated by medical documentation, and 15 additional instances in which she was
determined to be absent without leave (AWOL) after failing to follow instructions to produce
sufficient documentation. Moreover, the record shows that after her leave restriction was
issued on September 5, 2012, Complainant “flatly refused to show up for work.” As indicated
in the Agency’s decision, the termination proposal and decision letters made clear that
Complainant’s attendance record was “by far the worse of CMH’s 27 supervisors,” and that
her use of leave also set a poor example for her team of TSOs, who also had the worst
attendance record at the airport.

The record also shows that Complainant was afforded an opportunity to respond orally or in
writing to the termination proposal but failed to do so. Instead, she refused to show up for
work or communicate with her office until she was removed on October 5, 2012.

We agree with the Agency in concluding that Complainant failed to present sufficient evidence
that management’s legitimate, non-discriminatory reasons were untrue. Complainant presented
unsupported conjecture and speculations, which are contradicted by the record. For example,
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Complainant asserts that younger and male STSOs did not have to perform screening
functions, yet management officials dispute this assertion. Moreover, Complainant has not
produced any documents or witnesses to support these claims, or refute the testimony provided
by management officials.

We also agree with the Agency’s conclusion that Complainant failed to meet her burden of
establishing a prima facie case of a hostile work environment by failing to show that the
alleged conduct was sufficiently severe or pervasive, and by failing to produce evidence that
she was harassed on the basis of her protected status. We agree with the FAD’s conclusion
that beyond Complainant’s self-serving affidavit testimony and vague opinions offered by co-
workers with limited knowledge of the facts, the record is devoid of evidence to support the
conclusion that Complainant was required to perform work that her similarly situated co-
workers were not required to perform. We note that management officials deny that
Complainant was treated in a disparate manner. To the extent that S1 made unprofessional
and/or rude comments to Complainant, we find that such comments are not sufficiently severe
or pervasive enough to establish a hostile work environment. In addition, such comments
indicate personal animosity rather than discriminatory animus.

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 finding that Complainant failed to
prove by a preponderance of the evidence that she was subjected to disparate treatment or
harassment on the basis of her sex, age or back injury.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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.
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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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
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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

January 13, 2017
Date