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

Equal Employment Opportunity Commission

Feb 8, 2019

0120173069 (E.E.O.C. Feb. 8, 2019)

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

Delphia F.,1
Complainant,

v.

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

Appeal No. 0120173069

Agency No. HSTSA001372017

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the August 14, 2017 Final Agency
Decision (“FAD”) 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 Transportation
Security Officer ("TSO") at the Agency’s Orlando International Airport ("MCO" or "Airport") in
Orlando, Florida.

On February 3, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her as reprisal for engaging in prior protected EEO activity2 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.

2 Agency Case Nos. HSTSA014542014 and HSTSA253692016, currently pending hearings
under EEOC Hearing Nos. 510201600050X and 510201600455X, respectively.
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In October 2016, her FY2015 Performance Evaluation was delayed, and she
received an overall score/rating of 4.6.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation (“ROI”) and notice of her right to request a hearing before an EEOC
Administrative Judge (“AJ”). At Complainant’s request, the Agency issued a FAD pursuant to
29 C.F.R. § 1614.110(b).

A review of the record provides the following relevant facts:

As a TSO, Complainant was subject to the Agency’s Transportation Officer Performance System
(“TOPS”) for her annual performance evaluation, which determined her cash bonus. The TOPS
Rating Official was responsible for developing her performance plan, observing and evaluating
her performance, and performance evaluations and ratings. The Rating Official would submit
ratings/evaluations to the Reviewing Official for a final decision. Usually, the TOPS Rating
Official was an employee’s first line supervisor, and the Reviewing Official was the employee’s
second line supervisor.

Complainant’s first line supervisor (“S1”) was a Supervisory TSO, and her second line
supervisor (“S2”) was the Transportation Security Manager. Both S1 and S2 were aware that
Complainant identified S1 in an EEO action that was open throughout the FY 2016 rating period.
In an April 2016 email to the Deputy Assistant Federal Security Director (“D1”), Complainant
asked to be reassigned, explaining, “I do feel uncomfortable working with [S1], also I believe
that my [TSO and rating] will be affected by [S1] especially because she will be on the opposing
side of my [EEO] complaint.” No action was taken and Complainant continued to report to S1
for the remainder of FY 2016.

In September 2016, S1 prepared the FY 2016 TOPS performance evaluations and ratings for her
team. On October 1 and 2, 2016, S1 held individual meetings to finalize the TOPS ratings with
all her direct reports except for Complainant, who was on leave. Then, S1 left for a two-week
scheduled vacation. Complainant asked S2 why S1 did not issue her evaluation and rating before
leaving for vacation, and S2 stated that Agency policy barred issuing TOPS ratings prior to
October 1. S2 advised Complainant that the delay would not impact her eligibility for awards, or
her overall ratings. According to S2, Complainant “did not accept [his] answer.”

On October 10, 2016, Complainant emailed the Federal Security Director for the Orlando
Airport (“D2”), notifying him that all other TSOs on S1’s team received their TOPS ratings, and
she had not. Complainant also provided D2 with the April 2016 email to D1 regarding her
concerns about reprisal. D2 worked with D1 to reassign Complainant to another Supervisory
TSO, who would also be Complainant’s rating official for FY 2016 (“RO”).

On October 14, 2016, Complainant met with RO and signed off on her TOPS evaluation.
Complainant states that during the meeting, she believed RO referenced her EEO activity by
commenting that she “knew stuff was going on.” Of the 14 employees RO evaluated,
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Complainant received the highest rating of 4.6 (out of 5.0), which fell within the highest
performance category, “Achieved Excellence.”

In an October 15, 2016 email, Complainant thanked D2 for his assistance, and described RO’s
evaluation as “fair,” and based on firsthand experience. Although she already signed off on the
evaluation, Complainant stated that she intended to submit more documents so RO would be able
to provide a “comprehensive” rating. No changes had been made when on or about October 21,
2016, S2 approved Complainant’s TOPS rating and evaluation.

The FAD concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The instant appeal followed.

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”).

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
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Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency cites its internal policy, as well as both Complainant and S1’s leave schedules as the
legitimate nondiscriminatory reason for the delay in issuing Complainant’s TOPS rating and
evaluation for FY 2016. The record contains Part 6(D) of TSA Management Directive No.
1100.43-4, which provides the Agency’s policy and procedures for TOPS, which states: “[t]he
performance appraisal period begins on October 1 or the employee’s current permanent position
appointment date, whichever is later, and ends on September 30, or until the employee has been
on the performance plan for at least 90 days, whichever is later.” It is undisputed that because of
Complainant and S1’s leave schedules, the first day in October 2016 when they would both be in
the office at the same time to sign off on Complainant’s TOPS rating fell on or about October 17,
2016. The Agency notes that it mitigated the delay to October 14, 2016 by granting
Complainant’s reassignment request.

On appeal, Complainant provides no evidence or argument that would demonstrate these
explanations are pretext for retaliation. Complainant’s argument S1 retaliated against her by
“neglect[ing] to complete [Complainant’s] performance evaluation so that another reviewer
could lower [her] score and claim that they did not have adequate information to give [her] a
good rating” is contradicted in the record. Contemporaneous emails between D1 and D2, indicate
that S1 completed Complainant’s performance evaluation in September 2016. Also, S1 testified
that she “showed [RO] emails evidencing the Complainant’s excellent customer service. The
Complainant went above and beyond the normal assigned duties.” S1 also describes
Complainant as “a role model of excellence.” There is no indication that S1 believed she would
be replaced as Complainant’s reviewer, when she left for her two-week vacation, as the delay
would not adversely affect Complainant’s bonus eligibility and records, and because
Complainant was the one who sought reassignment.

Additionally, we find the Agency acted within its discretion in issuing Complainant an overall
rating of 4.6. It is well established that the Agency, as an employer, has broad discretion when
determining how best to manage its operations, including personnel decisions, and should not be
second guessed by this Commission absent evidence of unlawful motivation. See Gilbert v.
EEOC, EEOC Appeal No. 07A30049 (Aug. 11, 2004) citing Burdine and Furnco.

Complainant’s argument that RO, as the individual who ultimately signed off on her TOPS
performance review and calculated the 4.6 rating, failed to properly consider her TOPS FY 2016
Midyear Review and collateral duties speaks to the decision-making process on a personnel
decision. RO cited firsthand knowledge of Complainant’s work to inform her rating. She also
had access to S1’s September 2016 performance evaluation, and discussed Complainant’s
performance and rating with Complainant in a manner that Complainant described as “fair.”

This is beyond the purview of this Commission, as Complainant has not offered evidence of
unlawful motive. Complainant’s only evidence to establish that RO’s rating and performance
evaluation were motivated by discrimination is her bald assertion that RO made a comment to
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indicate she was aware of Complainant’s protected activity during their October 14, 2016
meeting. RO denies that her comment was related to EEO activity. Significantly, Complainant
received S1’s highest rating, and her bonus reflected the highest possible achievement level.
Management reassigned Complainant to RO specifically based on RO’s complete lack of
involvement in Complainant’s ongoing EEO actions. Even if RO did not deny that the comment
she made during the October 14, 2016 meeting with Complainant was in reference to
Complainant’s EEO activity, establishing that she was aware Complainant engaged in EEO
activity is not sufficient evidence of retaliatory motive.

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

February 8, 2019
Date