U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keri C,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2020002997 Appeal No. 0120182753 Hearing No. 460-2016-00090X Agency No. HSTSA022852015 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Keri C. v Dep’t Homeland Security, EEOC Appeal No. 0120182753 (Jan. 31, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a Transportation Security Inspector (“TSI”) at the Agency’s facility in West Columbia, South Carolina. On March 13, 2015, Complainant filed a formal EEO complaint claiming that the Agency discriminated against and subjected her to harassment based on national origin (Hispanic, 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. 2020002997 2 Dominican),2 disability (Attention Deficit/Hyperactivity Disorder), sex (female), and in reprisal for prior EEO activity when: 1. beginning in or around October 2013, through July 2014, Complainant’s immediate supervisor (“S1”), a Supervisory Transportation Security Inspector repeatedly pressured Complainant to transfer from Columbia Metropolitan Airport (“CAE”) to Greenville Spartanburg Airport (“GSP”), even though S1 was aware that Complainant had just transferred from CAE to Miami, Florida, and S1 had been informed by Complainant that she could not move again because of her child; 2. beginning in or around April 2014, and counting, S1 subjected Complainant’s work to unwarranted scrutiny. For example, S1 rejected Complainant’s inspection for missing two commas; 3. on or about April 10, 2014, S1 denied Complainant’s April 14, 2014, sick leave request, stating that Complainant needed to attend an Office of Inspection briefing; 4. on May 9, 2014, Complainant volunteered to assist the Charlotte International Airport’s (“CLT”) Transportation Security Inspection cargo team for a temporary detail, but S1 told Complainant she did not have enough experience; 5. on or about June 11, 2014, S1 again denied Complainant’s request to assist CLT’s Transportation Security Inspection cargo team; 6. on July 10, 2014, and August 11, 2014, S1 advised Complainant that her course surveys were not completed. Complainant asserts that her learning plan did not show any course survey pending; 7. on or about October 24, 2014, S1 denied Complainant’s request for two hours of annual leave. However, another employee was permitted to leave at noon; 8. throughout November 2014, S1 constantly contacted Complainant requesting an immediate response even on days that Complainant was on sick leave or working on the road; 9. on or about November 21, 2014, S1 changed Complainant’s work schedule, effective November 24, 2014, without providing Complainant justification or sufficient notice; and 2 Complainant alleged that she was discriminated against based on race, “Hispanic.” However, the Commission does not consider the term “Hispanic” to be a description of race, but of national origin. 2020002997 3 10. beginning on November 25, 2014, and continuing to the present, the Agency failed to respond “expeditiously” to Complainant’s reasonable accommodation request based on medical reasons to telework one or two days a week. The Agency conducted an investigation of the accepted claims and provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant timely requested a hearing. On June 25, 2018, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. The AJ determined that there were no genuine issues of material fact. The AJ incorporated by reference the Agency’s Motion for Summary Judgment3 and found that Complainant failed to present any evidence of discrimination or harassment based on national origin, sex, disability or retaliatory animus, and Complainant failed to demonstrate that the Agency’s articulated reasons were pretextual or motivated by discriminatory motive. On appeal, the Commission affirmed the Agency’s final order in a decision dated, January 31, 2020. The Commission determined that the Agency articulated legitimate, non-discriminatory reasons for claims 1 through 9. Specifically, the Commission found that Complainant did not dispute that her transfer to GSP did not occur and the record reflected that S1 returned Complainant’s reports and other employees’ reports for similar errors. The Commission also found that Complainant took 1.5 hours of sick leave on April 14, 2014 and she took two hours of annual leave on October 24, 2014. Regarding the two details at issue, the Commission clarified that the record reflected that there was only one detail opportunity and the opportunity was only available for S1 and another individual and was not available not to Complainant or others. The Commission also indicated that S1 ultimately approved Complainant’s preferred start time and the Commission noted that Complainant did not dispute that it was within S1’s supervisory authority to question Complainant’s schedule change. Regarding Complainant’s reasonable accommodation request in claim 10, the Commission determined that Complainant acknowledged that her supervisors were unaware of her disability before she submitted her reasonable accommodation request on November 21, 2014. The Commission determined that S1 timely forward Complainant’s request for processing and provided Complainant an interim accommodation (schedule change) while Complainant’s request was under review. 3 The Agency argued in its Motion for Summary Judgment that discrete acts that occurred 45- days before Complainant’s November 24, 2014 initial EEO Counselor contact, or before October 10, 2014, are time-barred and should be dismissed on procedural grounds. However, the AJ did not include a determination on this issue in her decision and addressed all claims on the merits. 2020002997 4 Although the record indicates that the Agency inexplicably delayed processing Complainant’s reasonable accommodation request, the Commission determined that there was no evidence to support a determination that Complainant’s request to telework from home would have been an effective accommodation in light of her duties as a TSI. Finally, the Commission determined that a finding of a hostile work environment was precluded by its determination that Complainant failed to establish that the action taken by the Agency were motivated by discriminatory animus. See. Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). In the instant request for reconsideration, Complainant submits a brief expressing her disagreement with the appellate decision and reiterates arguments previously made on appeal. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120182753 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2020002997 5 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 17, 2020 Date
