Val L.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0120171102 (E.E.O.C. Sep. 28, 2018)

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

Val L.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171102

Agency No. HS-TSA-24985-2016

DECISION

On January 30, 2017, 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
January 17, 2017, final decision concerning his 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. Our review is de novo. 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 Transportation
Security Officer at the Agency’s work facility in Minneapolis.

On January 18, 2016, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and harassed him on the basis of his national origin (Hispanic) when:

1. On September 17, 2015, management issued a Letter of Reprimand to Complainant
when he worked another employee’s shift and left early.

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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2. On November 9, 2015, Complainant attended a pre-decisional meeting after being
informed that he failed to follow proper procedures when trading shifts with another
employee.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his 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 Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reflects that on August 30, 2015, the Supervisory Transportation Security
Officer (STSO) presented Complainant with a memorandum in which Complainant was charged
thirty minutes of Absent Without Leave (AWOL) based on his failure to complete his scheduled
shift on August 15, 2015. According to the STSO, Complainant clocked out at 19:54, but had
accepted a shift trade with duty hours from 1200 to 2030. At a pre-decisional discussion on
September 3, 2013, Complainant acknowledged that he clocked out early. However, he claimed
that he did not take his lunch break that day so he could leave early. The Agency stated that a
review of a video recording for the area in which Complainant worked disclosed that he was not
at his work station, but rather in the break room from 15:31 to 16:04. The Agency stated that on
September 17, 2015, the STSO issued a Letter of Reprimand to Complainant based on:

Violation of the attendance management process by clocking out of his assigned shift prior
to the end of his shift.

Violation of the STR procedures policy, for failure to work the agreed-upon traded shift.

Failure to follow policy, for reporting for duty out of uniform.

Violation of the CBA process for meal breaks by 1) clocking out thirty minutes prior to the
end of shift and 2) previously taking a 30-minute break during the shift at issue.

The Letter of Reprimand noted that since June 2009, Complainant had exhibited a pattern of failure
to follow procedures and directions, including at least ten documented corrective actions.
According to the Agency, Complainant’s prior disciplinary actions included an August 28, 2014
Letter of Reprimand for late arrivals, unscheduled absences and failure to follow procedure
guidelines. The Agency determined that Complainant failed to prove that these legitimate,
nondiscriminatory reasons were a pretext for discrimination. The Agency stated that Complainant
argued that he was unaware he was required to take a lunch break during a six-hour workday. The
Agency determined that Complainant did not refute management’s explanation that he clocked out
thirty minutes early despite having taken a lunch break.

With regard to claim (2), the Agency stated that on October 15, 2015, the MSP Scheduling
Operations Officer (SOO) denied Complainant’s shift trade request with his coworker. The SOO
noted that the trade request inaccurately reflected Complainant’s shift time and hours.
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The Agency noted that on November 24, 2015, the STSO issued Complainant a Letter of
Counseling, for failure to follow established leave procedures and violation of Article 5 of the
shift-trade policy. The Letter of Counseling was based on Complainant’s submission on October
15, 2015, of a shift trade request that did not include the authentic signature of his trading partner,
and also because between January 10, 2015 and October 1, 2015, Complainant submitted an
additional 29 shift trade request forms with signatures not matching the trading partners’ known
authentic signatures.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for having a pre-
decisional discussion with Complainant prior to issuing him the Letter of Counseling. According
to the Agency, the SOO stated that Complainant had established a pattern over the last year of
signing on his trading partners’ behalf. The Agency stated that Complainant contended that his
trading partner on the specific date in question pre-authorized him to sign on her behalf. The
Agency noted that CBA Article 5.4a requires “all employees participating in the requested shift
trade [to] sign [the] Shift Trade Request.” The Agency determined that Complainant failed to
refute its explanation for conducting a pre-decisional meeting prior to issuing him disciplinary
action, and failed to demonstrate that the pre-decisional meeting was based on his national origin.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13.

The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency explained that Complainant was issued the Letter of Reprimand based on his violation
of the attendance management process by clocking out of his assigned shift thirty minutes prior to
the end of his shift. We find that the Agency has presented a legitimate, nondiscriminatory reason
for issuing Complainant the Letter of Reprimand.

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With respect to claim (2), the Agency stated that a pre-decisional meeting was held with
Complainant on November 9, 2015, based on his failure to follow established leave procedures
and violation of Article 5 of the shift-trade policy. The Agency noted that Complainant had
developed a pattern over the past year of signing on behalf of his shift trading partners. We find
that the Agency articulated legitimate, nondiscriminatory reasons for holding the pre-decisional
meeting with Complainant.

Complainant argues with regard to the Letter of Reprimand that he was not required to take a lunch
break as he was a part-time Transportation Security Officer and had worked six hours on the day
in question, August 15, 2015. Complainant states that he felt singled out by the Agency for leaving
early. With respect to the pre-decisional meeting, Complainant contends that his coworker filled
the space with her name and thus it was a valid shift trade. The Agency demonstrated as to the
Letter of Reprimand that Complainant took a break and still left thirty minutes early. Moreover,
the record reflects that even if Complainant had not taken a break, he had been informed by a
management official that he could not shorten his shift due to not taking a lunch break. As for the
pre-decisional meeting, the Agency has shown that Complainant failed to follow proper procedures
when seeking the shift trade as the shift trade request did not contain the authentic signature of
Complainant’s trading partner. The Agency points out that between January 10, 2015 and October
1, 2015, Complainant submitted an additional 29 shift trade request forms with signatures not
matching the trading partners’ known authentic signatures. We find as to both claims that
Complainant has failed to establish that the Agency’s reasons for its actions were pretext intended
to hide discriminatory motivation.

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the
Commission finds that Complainant has not established that he was subjected to discrimination or
a hostile work environment as alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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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).
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.

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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

September 28, 2018
Date