Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120111915 (E.E.O.C. Mar. 14, 2013)

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

Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120111915

Hearing No. 461-2009-00018X

Agency No. HS-08-TSA-001545

DECISION

On February 15, 2011, Complainant filed an appeal from the Agency’s December 6, 2010,
final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst at the Louis Armstrong New Orleans International Airport (MSY) in New Orleans,
Louisiana. The record reveals that the Agency reassigned Complainant to the Management
Analyst position following an extended period in which she served as Training Coordinator.
Complainant also served in the capacity of Acting Assistant Federal Security Director for
Screening (AFSD-S) for several months in 2006.

Complainant filed an EEO complaint dated February 27, 2008, alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability (cervical fusion and heart blockage) and in reprisal for prior protected EEO activity
when:

1. On September 27, 2007, Complainant was placed on a Performance Improvement
Plan (PIP).
2. On September 27, 2007, Complainant received a Letter of Reprimand.
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3. On November 14, 2007, Complainant’s government driving privileges were
suspended.
4. On November 15, 2007, Complainant received negative comments on her annual
performance appraisal.
5. On December 15, 2007, Complainant received a Letter of Warning.
6. On February 14, 2008, Complainant received a Notice of Decision imposing a five-
day suspension.

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 EEOC
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.

On appeal, Complainant claims the Agency failed to comply with Agency directives by not
engaging in progressive disciplinary practices. Complainant alleges the Agency failed to
document any performance problems by meeting with her to discuss any potential performance
problems prior to the issuance of a Letter of Reprimand (LOR), a Performance Improvement
Plan (PIP), or her annual performance appraisal with negative comments. In addition,
Complainant states she was not allowed the same opportunities as other members of the
Agency at this location to amend her timesheet. Complainant states that she was not engaged
in driving the local government vehicle and used her own vehicle for work related trips from
her duty location to the airport. Thus, she states the letter prohibiting the driving of the local
government vehicle was unwarranted and an act of hostility to the employee.

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. (November 9, 1999) (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”).

With regard to issues (1) and (4), the Agency noted that the Assistant Federal Security Director
of Operations (AFSD-O) stated that she spoke to Complainant several times about her
performance, and then issued the PIP in September 2007, in order to give Complainant the
opportunity to improve her performance before her year-end rating. The Agency noted that
the Acting Administrative Officer (AAO) confirmed that, after she replaced the AFSD-O as
Complainant’s supervisor, she rescinded the PIP because it was discovered that, due to
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administrative errors, the PIP had been issued while Complainant was on detail in the
Management Analyst position, but before Complainant was formally reassigned to that
position. The AAO stated she then gave Complainant a satisfactory rating on her December
2007 annual review; however, she retained the comments from the PIP that were indicative of
Complainant’s work during the time frame covered by the review. Specifically, the AAO
stated that “the comments that had been referenced in conjunction with the PIP were still
applicable and accurate" with regard to Complainant’s overall performance of her duties.

With regard to issue (2), the Agency noted that the AFSD-O stated that during the course of
supervising Complainant, she discovered numerous errors and irregularities relative to
Complainant’s timecards, particularly in the area of “accurately recording” leave that had been
used. The AFSD-O noted that, despite prior warnings to ensure the accuracy of the
information, there were “several instances of inaccurate reporting of pay and leave” during
one pay period that she felt "indicated falsification.” The AFSD-O stated she issued the Letter
of Reprimand because of the errors, and that she took into account prior warnings and the
absence of an “acceptable” explanation for the errors.

Complainant stated that during this time she was taking medication which negatively affected
her “dependability and judgment” and she noted there were “confusing factors” relating to her
leave balances and the categories of leave that were available for her to use. Complainant
stated that when she was told of the errors, she requested that she be allowed to fix the
timecard; however, according to Complainant, the AFSD-O denied her request.

The record reveals that the AFSD-O afforded Complainant an opportunity to bring in medical
documentation which could have mitigated the charges in the Letter of Reprimand; however,
Complainant did not submit any medical documentation. Although on appeal Complainant
claims that she has witnesses to testify to this claim and states that evidence will be provided to
support this allegation, we find she failed to show that any comparatives were treated
differently. Upon review, we find Complainant failed to show that the Agency’s actions were
motivated by discriminatory animus or retaliation.

With regard to issue (3), the Federal Security Director (FSD) stated that Complainant informed
him that she had a recent automobile accident and some traffic citations. The FSD explained
that Complainant told him that the medications she was taking caused her to be drowsy and
inattentive. The FSD further stated that Complainant told him that the medications she was
taking caused her to have the car accident and drive in a way that led to the traffic citations.
The FSD noted that Complainant had access to and was authorized to drive government
vehicles in the performance of her official duties, but that her job did not require her to drive.
The FSD stated that he was concerned about liability for any future accidents Complainant
might have and as a result he suspended her driving privileges. We find Complainant failed to
show that the Agency’s reasons for suspending her driving privileges were a pretext for
discrimination or retaliation.

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With regard to issue (5), Complainant claimed that on December 15, 2007, she received a
Letter of Warning. The record does not contain a Letter of Warning issued on December 15,
2007. However, upon a review of her formal complaint and affidavit, Complainant clarifies
that she is referring to a Letter of Warning that was written by the AFSD-O which stated that
Complainant did not have supervisory authority over the TSA Approved Instructors (TAIs).1

Complainant claimed that this letter was put into her Official Personnel File (OPF); however,
she stated it was later rescinded after an Ombudsman became involved in the matter.
Complainant claimed that the AFSD-O later sent her an electronic mail message stating that the
Letter of Warning was not in Complainant’s OPF; however, it was not rescinded.
In her affidavit, the AFSD-O stated she issued Complainant a Letter of Reprimand for
encouraging TAIs to disregard instructions given to them by the AFSD-Screening, without
reviewing the file. The AFSD-O recalled Complainant challenging the Letter. The AFSD-O
stated she did not send the Letter of Reprimand to Headquarters for inclusion in Complainant’s
OPF since she did not believe the behavior warranted a permanent mark on Complainant’s
employment history and because she intended to pull the letter within 90 days. The AFSD-O
stated that if the letter was the subject of a call from the Ombudsman, she would have
informed the Ombudsman of the reasons she felt a letter was warranted, that the letter was not
placed in Complainant’s OPF, and that the letter had served its intended purpose of putting
Complainant on notice that her conduct was unacceptable.

With regard to issue (6), the FSD stated that during the fall of 2007, several issues came to his
attention, including Complainant’s payment history on her official credit card and allegations
of “inappropriate conduct” by a government contractor that led to an administrative inquiry.
The FSD noted that the government contractor submitted a written complaint to her supervisor
about a series of interactions with Complainant that had resulted in a “very uncomfortable and
unprofessional experience.” The FSD further explained that Complainant had failed to follow
payment procedures for her government travel card. The FSD stated that after meeting with a
group of supervisors, the Acting Administrative Officer, and legal counsel to determine the
appropriate penalty, the Agency decided to issue Complainant a proposed five-day suspension
with which the FSD concurred. The FSD noted that earlier in his career, he suspended
another member of the FSD staff for 7 to 10 days for travel card infractions. Upon review, we
find Complainant failed to show that the Agency’s actions were motivated by discriminatory
animus or retaliation.

With respect to Complainant's overall claim of harassment, we find Complainant failed to
prove by a preponderance of evidence that she was subjected to harassment based on her
disability or in reprisal for her prior protected activity.2

1 It is unclear from the record when this Letter of Warning was issued.

2 We do not address in this decision whether Complainant was a qualified individual with a
disability.
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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 14, 2013
Date