U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Toshia F.,1
Complainant,
v.
Kevin McAleenan,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120181054
Agency Nos. HS-TSA-23776-2014
HS-TSA-23956-2015
HS-TSA-00277-2017
DECISION
The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 7, 2016 final decision concerning the three formal complaints which claimed
unlawful 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Transportation Security Officer
(LTSO), F Band, at the Los Angeles International Airport in Los Angeles, California.
Complainant filed three formal EEO complaints on May 29, 2015 (“Complaint 1” - Agency No.
HS-TSA-23776-2015), August 5, 2015 (“Complaint 2” - Agency No. HS-TSA-23956-2015), and
December 28, 2016 (“Complaint 3” – Agency No. HS-TSA-00277-2017), respectively.
Complainant claimed that the Agency discriminated against based on race (African-American),
sex (female), color (brown), and in reprisal for prior 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.
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1. on October 16, 2014, management rated Complainant’s Fiscal Year (FY) 2014
performance as “Achieved Expectations” (Complaint 1);
2. on May 10, 2015, management did not allow Complainant to work a maximum of
12 overtime hours (Complaint 2); and
3. on or about October 3, 2015, Complainant discovered that her work performance
received more scrutiny than did the work performance of her colleagues, resulting
in Complainant receiving a lower than expected FY 2016 performance score of
4.41 (Complaint 3).
After the investigation of Complaints 1, 2 and 3, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing for Complaints 1 - 3.
Complainant, however, subsequently withdrew the hearing requests. The Agency consolidated
the three complaints for processing.
The Agency issued the instant final decision on March 7, 2016, pursuant to 29 C.F.R. §
1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail,
she must first establish a prima facie 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
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs 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
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
Complaint 1
Complainant asserted that on October 16, 2014, management rated Complainant’s Fiscal Year
(FY) 2014 performance as “Achieved Expectations.”
The Supervisory Transportation Security Officer (“former supervisor”) (Hispanic, beige female,
unknown prior protected activity) was Complainant’s supervisor during the relevant period. The
former supervisor stated that she was the rating official for Complainant’s FY2014 performance
evaluation, and that the Transportation Security Manager was the reviewing official. She
explained that the Transportation Security Officers (TSOs) were rated based on work
performance, which included the TSOs providing documentation for their performance as
negotiated by the Collective Bargaining Agreement.
The former supervisor stated that Complainant did not perform anything “above her job
description. She would do certain things here and there, but it was not consistent enough to earn
her a higher rating. For her to get a higher rating, she had to show more consistency and she
would have submitted documentation showing she had done these tasks.”
Complainant asserted that she should have received all 5’s for her performance evaluation
because she met all requirements as listed in the Lead Transportation Security Officer
expectations for each of the six core competencies. However, the former supervisor explained
that Complainant received a five for job knowledge and skills categories but “was possibly fours,
but not fives and did not earn fours in all performance goals because she did not provide
quarterly documentation of how she did this.” The former supervisor noted that Complainant
“exceeded expectations in some categories because she did some of the competencies to earn a
four, but not to earn a five. For her final score, she received expectations because that is what
she provided documentation for and earned.”
Further, the former supervisor noted that Complainant “did coach and mentor and help others,
but did not document how she did this. She needed to provide documentation on a quarterly
basis for an officer’s performance. She was training, and correcting, officers on procedures, but
not to the point where she was giving quarterly reports on this.”
The Transportation Security Manager (“manager”) (black, dark male, unknown prior protected
activity), also Complainant’s second-line supervisor. The manager stated that Complainant’s
ratings were based on a combination of factors.
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Specifically, the manager stated that the total rating Complainant received was based “on how
she met the performance goals and the competencies of each category. Some of the different
factors included: coaching and mentoring, critical thinking; integrity; interpersonal skills; oral
communication and teamwork. Each category receives a rating number from 1-5.”
The manager stated that the former supervisor rated Complainant “based on her monitored
performance and through progressive reviews. In addition, [former supervisor] used the
performance goals, core competencies and associated performance standards to appraise the
complainant.” The manager noted that Complainant did not turn in a self-assessment until after
she saw her rating. Thereafter, Complainant requested additional time to write a self-assessment
for review. The manager further noted that the former supervisor reviewed Complainant’s self-
assessment and determined that no changes were required. Moreover, the manager stated that he
reviewed the documentation and agreed with the former supervisor’s decision.
Complainant also asserted that the former supervisor told her that she was instructed by the
manager to lower her rating because she did not deserve a higher rating. However, the manager
explained that he signed the performance rating sheet on October 2, 2014, and that he did not
speak to the former supervisor about Complainant’s rating until October 15, 2014. Furthermore,
the manager stated that there were “no changes made in between.”
Complaint 2
Complainant alleged that on May 10, 2015, management did not allow Complainant to work a
maximum of 12 overtime hours.
Another Transportation Security Manager (“Manager 2”) (Hispanic, light brown male, unknown
prior protected activity) stated at that time, he was the approving official for any overtime.
Manager 2 explained that Agency management has “a certain amount of hours we are allotted to
authorize for overtime and during certain timeframes.”
Manager 2 stated that on May 10, 2015, Complainant failed to check in with the floor supervisor
“to find out of the help was needed. When she was asked to sign an overtime justification form,
she refused and when she was asked what hours she signed up to work overtime, she said she
had not decided how many hours she wanted to work overtime. I told her there were only certain
periods she could work overtime.” The manager noted that Complainant claimed that her
manager told her she could work as many hours as she wanted. The manager stated that when he
asked Complainant for her manager’s name “she would not say.”
Further, Manager 2 asserted that Complainant “failed to sign in the overtime book, she refused to
sign the form, and did not provide the manager’s name. I said she needed to clock out and go
home because she was not following proper procedures. Those are local terminal procedures,
not agency-wide.”
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Complainant asserted when Manager 2 asked her who authorized her to work overtime, she
claimed that she and her co-workers were briefed by the supervisor and two other supervisors
that they could work unlimited overtime without the necessity to sign up for overtime. However,
Manager 2 stated that he asked Complainant “why I would be the only manager not in that loop.
When I asked her to provide names of the managers who said this, she failed to provide it. She
said ‘my managers’ and when I asked who, she failed to provide any names.”
Moreover, Manager 2 stated at that time “we were kicking off the summer traffic season. We
had certain hours we were allotted. [Corpus] arranged the schedule with how many hours and
certain slots that were available. Officers could sign up through si[gn]-in book and iShare. That
way, we knew what paperwork to submit to make sure they got paid.”
Complaint 3
Complainant asserted that on or about October 3, 2015, Complainant discovered that her work
performance received more scrutiny than did the work performance of her colleagues, resulting
in Complainant receiving a lower than expected FY 2016 performance score of 4.41.
The Supervisory Transportation Security Officer (black, dark brown female, unknown prior
protected activity) was Complainant’s first level supervisor during the Fiscal Year 2016. The
supervisor explained that employees are rated on a scale of 1 to 5 with 1 being the lowest and 5
being the highest for each competency and goal. The supervisor further stated that a score of 3.0
is the lowest passing score that employees can receive. The supervisor stated at that time she
gave Complainant a final rating of “Exceeded Expectations” with a final score of 4.41.
The supervisor denied scrutinizing Complainant’s work more than that of other employees.
Specifically, the supervisor stated that she rated Complainant “a higher score than what she
finally received. I do not remember the numerical score I gave her but the initial final rating I
gave the Complainant put her in the highest category of Achieved Excellence.”
Another Lead Transportation Security Officer (“Lead”) (Asian, brown female, unknow prior
protected activity), also Complainant’s second level supervisor, stated that she was the approving
official regarding Complainant’s performance. The Lead thought she had approved
Complainant’s rating as “Achieved Excellence.” However, Complainant’s performance appraisal
indicated that, prior to the Lead’s retirement on October 1, 2016, the Lead approved
Complainant’s rating as “Exceeded Expectations.”
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination. Beyond her bare
assertions, there is simply no evidence to establish that Complainant’s sex, race, color and/or
retaliatory animus played any role in the disputed actions.
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CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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 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
July 17, 2019
Date
