Jonnie C.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181774 (E.E.O.C. Sep. 11, 2019)

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

Jonnie C.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120181774

Agency No. HS-TSA-02083-2017

DECISION

On May 9, 2018, 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
April 25, 2018, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision which found that Complainant did not
demonstrate that she was subjected to discrimination as alleged.

ISSUES PRESENTED

The issues presented are whether Complainant established that the Agency erred in issuing a final
decision (FAD) because she had requested an Administrative Hearing; and whether she established
that she was discriminated against when removed during her probationary period.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer at the Agency’s John Wayne Airport in Santa Ana, California. Complainant was
diagnosed with an unidentified stomach ailment that was expected to last until 2018.

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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She indicated that her condition flared up three times a month and lasted one to two days at a time.
As a result, on June 8, 2017, Complainant was approved for provisional intermittent Family and
Medical Leave (FMLA), for use from June 20, 2017, until June 19, 2018. On October 28, 2016,
Complainant was approved for 40 hours of annual leave from July 9, 2017, to July 15, 2017. On
July 16, 2017, Complainant invoked FMLA. An inquiry was conducted into Complainant’s leave
usage when management was alerted to a social media post by Complainant showing that she was
in Hawaii on a day on which she invoked FMLA. On July 16, 2017, she posted on social media
that she “made it” to Honolulu, Hawaii. Later that same day she posted that she was at a diner in
Honolulu, Hawaii.

On July 27, 2017, Complainant met with the Deputy, Assistant Federal Security Director and the
Transportation Security Manager to discuss the leave taken on July 16, 2017. When questioned
about her leave usage and whether or not she was in Hawaii at the time, Complainant denied she
was in Hawaii until she was confronted with her social media posts. Thereafter, Complainant
admitted that she was in Hawaii. Complainant was told that she was going to be terminated for
lying. On July 28, 2017, Complainant was terminated for Lack of Candor in connection with an
FMLA investigation. Complainant argued that the investigation into her FMLA leave activities
was without just cause. She maintained that other employees were not questioned about their
FMLA usage.

On October 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (unidentified stomach ailment) and reprisal for prior protected
EEO activity when on July 28, 2017, she was issued a Letter of Termination during her two-year
probationary period.

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. According to the Agency, when Complainant did
not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. Specifically, the Agency
maintained that it articulated legitimate, nondiscriminatory reasons for its actions, namely, that
Complainant was terminated for lack of candor in connection with an FMLA investigation.
Management indicated that Complainant denied that she was in Hawaii, and that it was not until
she was confronted with her own social media posts, did she admit that she was in Hawaii when
she invoked her FMLA leave. Further, management indicated that it was unaware of
Complainant’s disability, while her immediate supervisor was aware that she had access to FMLA
leave, they were unaware if it was for her or a family member. The managers also indicated that
they were not aware that Complainant had prior EEO complaint activity. Additionally, the Agency
maintained that Complainant did not provide any comparators who were similarly situated to her,
as she did not show that anyone who had also lied during an investigation but was not terminated.
The Agency asserted that Complainant did not show that its reasons for her termination was pretext
for discrimination, or that discriminatory animus was involved in the decision to terminate her.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends, in pertinent part, that she submitted a hearing request in a timely
manner and therefore, she requested a hearing. Complainant also maintains that she was denied
due process when she was not given the opportunity to provide a written statement during the
investigation about her leave usage. Further, she argues that she was not given the right to union
representation.

In response, the Agency contends that Complainant now attempts to argue that management
abruptly ended the investigation when she invoked her right to a union representative and did not
take a written statement from her during the investigation. However, by her own admission in her
affidavit submitted during the EEO investigation, she did not decide to seek a union representative
until after the meeting occurred. Moreover, she has not provided any evidence to show how failing
to obtain a written statement indicates discrimination. The Agency asserts that Complainant was
untruthful in an investigation conducted by management which was enough to terminate her.
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”).

We will first address the procedural question of whether Complainant timely requested a hearing.
Upon review, we find that while Complainant submitted evidence that a document was delivered
to the “mail room” on February 23, 2018 in Los Angeles, there is no indication what that document
was, i.e., whether it was a hearing request form. Complainant was clearly instructed to send her
request to the EEOC’s Los Angeles District Office, and to provide copies to the Agency’s
Transportation Security Administration’s Civil Rights Division and Office of Chief Counsel. We
find no persuasive indication that a hearing request was filed as alleged, or that copies were
provided to the Agency. In reaching this conclusion, we note that a search of the Commission’s
electronic records does not indicate that a request was ever filed by Complainant. As such, we find
that the Agency properly issued a FAD.

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978).
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Once Complainant has established a prima facie case, the burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back
to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s)
for its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that assuming, arguendo, Complainant established a prima
facie case of discrimination with respect to all of her bases, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, Complainant was terminated during her
probationary period for lack of candor in connection with an investigation. Complainant did not
admit that while on FMLA leave she went to Hawaii until she was confronted with her social
media posts. We find that Complainant did not demonstrate that the Agency’s reasons were pretext
for discrimination, or that discriminatory animus was involved with the Agency’s decision. The
Commission has long held that where a complainant is a probationary employee, he or she is
subject to retention, advancement, or termination at the discretion of an agency so long as these
decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No.
01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). We find in the
instant case that Complainant has not demonstrated that discrimination was involved. On appeal,
Complainant argued, among other things, that she was denied due process by not being given the
opportunity to submit a written statement, and by not having union representation during
questioning. Although these matters may be true, we find that they are immaterial to the present
EEO case that is before us. These are issues that are not within our purview.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that she was subjected to discrimination as alleged.

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.
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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. 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.
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.

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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 11, 2019
Date