Chu S.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019004148 (E.E.O.C. Sep. 10, 2019)

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

Chu S.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019004148

Hearing No. 480-2018-00105X

Agency No. HS-TSA-01387-2017

DECISION

On June 11, 2019, 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
May 14, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation
Security Officer (LTSO), SV-1802, F band, at the Agency’s Los Angeles International Airport
(LAX) facility in Los Angeles, California.

On July 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and color (brown) when, on or
around March 14, 2017, the Agency suspended her for five calendar days.

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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The Agency accepted the complaint and conducted an investigation, which produced the
following facts:

The Agency suspended Complainant for 5 days on the charge of making inappropriate
comments, relating to events that occurred on December 13, 2016. Complainant alleged that
other LTSO’s who were not of the same race, sex, and color engaged in similar conduct and
were not similarly disciplined.

A memorandum, dated December 20, 2016, from the Supervisor Transportation Security Officer
(STSO) to the Transportation Security Manager (TSM) indicates that STSO and Complainant
had a pre-decisional discussion meeting. STSO alleged that, on December 13, 2016,
Complainant failed to exercise courtesy and tact while interacting with her. After having been
given directions on how to run a pre-check properly, Complainant responded, “I always get the
scraps, they always do this to me, oh well when shit falls apart on precheck I don’t care,” and
repeated this multiple times by the STSO podium. Complainant also stated in a very loud tone of
voice, “No, [co-worker], you keep those officers, I will just make it work.” Complainant also
walked away as STSO called her name and, after STSO called her multiple times, she stopped
walking and looked in a different direction and became unresponsive.

The memorandum indicates that Complainant stated that she failed to recognize how she did not
exercise being tactful, courteous, or following the clear directions she was given. She indicated
she would work on being tactful and courteous with supervisors and peers and follow all
directions.

A response from Complainant, dated December 21, 2016, indicates that, on December 13, 2016,
Complainant came to work under personal stress. She did not have enough officers on pre-check
and became frustrated. She expressed her frustration and was not trying to be rude. She
recognizes that she could have been more tactful and courteous and apologized for how she
handled things. She indicated that this would not happen again and had no problem helping
others or treating others with respect.

Statements from other LTSO’s (LTSO1 and LTSO2), dated January 2, 2017, describe their
observations of Complainant’s behavior. LTSO1 described Complainant as being aggressive and
disrespectful. LTSO2 described Complainant’s demeanor and behavior as brash.

A Notice of Proposed Seven (7) Calendar Suspension (Notice of Proposed Suspension), dated
February 7, 2017, indicates that Complainant was charged with inappropriate comments. There
were two specifications, both of which occurred on December 13, 2016. The first specification
was that Complainant allegedly repeatedly made statements to the STSO and at the STSO
podium to the effect of the following: “I always get the craps and they always do this to me.
Well, when shit falls apart on precheck, I don’t care.” The second was that Complainant walked
away from STSO and ignored her when she called her name.

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The Notice of Proposed Suspension indicates that, prior to taking this action, the Agency
reviewed a pre-decisional discussion statement, dated December 20, 2016 and statements from
Complainant, LTSO1, and LTSO2. The Agency considered a number of factors, including the
nature and seriousness of the offense, Complainant’s history of being placed on notice for similar
misconduct and having received a memorandum of counseling for her negative attitude. The
Agency also considered, as mitigating factors, her satisfactory job performance and that she had
been employed at the Agency for over 9 years.

A statement from Complainant, dated February 10, 2017, indicates that she denies making the
following statement, on December 13, 2016 to STSO: “I always get the scraps, they always do
this to me, oh well when shit falls apart on precheck I don’t care” in from the public and fellow
officers. She also denied waking away from STSO or ignoring STSO.

A letter from Complainant to the Agency, dated February 14, 2017, indicates that, in response to
the Notice of Proposed Suspension, Complainant categorically disputes, in part, the charge of
unprofessional conduct, asserting that there is not a preponderance of evidence to support the
allegation that she engaged in inappropriate comments. Complainant asserts that she did not
violate the Agency’s Employee Responsibilities and Code of Conduct, as this is not a substantive
charge, as it does not have any elements or other attributes of a specific charge. She also
generally asserts that the preponderance of evidence does establish that she violated the
Agency’s Employee Responsibilities and Code of Conduct, as alleged.

A letter from the Deputy Assistant Federal Security Director for Screening (Deputy Assistant) to
the Human Resources Department, dated February 23, 2017, indicates that the Deputy Assistant
has considered the relevant facts, including Complainant’s written reply and decided to uphold
the proposed recommendation of a 7-day suspension, noting that Complainant does not take
responsibility for her actions and has had prior disciplinary action fort he same and/or similar
offenses. This is consistent with similar offenses and within the Agency’s guidelines.

A Notice of Decision on Proposed Seven (7) Calendar Day Suspension (Notice of Decision),
dated March 7, 2017, indicates that the Agency decided to suspend Complainant for 5 days,
without pay. The charge was inappropriate comments, with two specifications as described in
the Notice of Proposed Suspension. The Agency considered the Notice of Proposed Suspension,
the material relied upon by the Proposing Official, and Complainant’s written response and
statement. The Agency also considered the statements of STSO, LTSO1, and LTSO2. The
Agency found Complainant’s initial statement indicating she was frustrated and did not have
enough officers and the statements by LTSO1 and LTSO2 make it more likely than not that
STSO’s statement is accurate. Thus, the Agency determined the charge was proven. However,
the Agency considered a number of factors, including Complainants work history and
performance, the seriousness of the inappropriate comments, potential negative affect to the
Agency, and Agency guidance, and mitigated the discipline to a 5-day suspension.

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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.

The instant appeal followed. Complainant has not submitted a brief or statement in support of her
appeal. The Agency has not submitted a brief or statement in response to the appeal.

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”).

Complainant alleged that the Agency treated her disparately in suspending her for five days. 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, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S.
502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that, upon consideration of the statement of STSO, witnesses,
and Complainant, the preponderance of the evidence supported STSO’s allegations of
Complainant’s improper comments. In determining the discipline, the Agency considered several
factors, including Complainant’s work history and performance, the seriousness of the
inappropriate comments, the potential negative affect to the Agency, and Agency guidance. The
5-day suspension was consistent with similar offenses and within the Agency’s guidelines.
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Therefore, we find that Complainant has not established by a preponderance of the evidence, that
the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful
discrimination or motivated by some unlawful 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 final decision.

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.
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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 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 10, 2019
Date