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

Equal Employment Opportunity Commission

Jan 25, 2018

0520180100 (E.E.O.C. Jan. 25, 2018)

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

Lara G.,1
Complainant,

v.

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

Request No. 0520180100

Appeal No. 0120172683

Hearing No. 430-2015-00140X

Agency No. HS-TSA-01640-2013

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Lara G. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120172683 (Oct. 5, 2017). 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).

On November 16, 2013, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination based on sex (female), disability (esophageal varices), and in reprisal for
prior EEO activity when:

1. On May 25, 2013, she was issued a Letter of Counseling;

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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2. In May 2013, a Supervisory Transportation Security Officer (STSO) commented
about her weight and/or the size of her breasts; and

3. On May 29, 2013, through June 29, 2013, she was placed on unpaid leave.

On April 16, 2014, the Agency dismissed the complaint as untimely filed. Complainant
appealed and, in Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120122248 (Sept.
25, 2014), the Commission reversed the dismissal and remanded the matter for further
processing. After the investigation of the complaint, Complainant requested a hearing before an
EEOC Administrative Judge (AJ). On June 26, 2017, the AJ assigned to the case issued a
summary judgment decision, finding that Complainant had not been subjected to discrimination
or reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision.

Complainant appealed the final order and, in Lara G. v. Dep’t of Homeland Sec., EEOC Appeal
No. 0120172683 (Oct. 5, 2017), the Commission affirmed the Agency’s final order. Therein, the
Commission determined that the Agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the Agency issued the Letter of Counseling because she continually
reported to her baggage area late and/or tardy and failed to clock in at the Kronos clock in her
assigned area for work as instructed. Next, the Commission found that even assuming that
STSO made the comments at issue, there was no evidence that the comments were based on
Complainant’s protected class. Further, the conduct at issue was insufficiently severe or
pervasive to establish a hostile work environment. Finally, Complainant was placed on unpaid
leave following her comments about committing suicide. Complainant did not request sick or
annual leave, was placed on leave without pay, and returned to work after submitting medical
documentation showing that she was fit for duty. The Commission concluded that Complainant
failed to show that the Agency’s reasons for its actions were pretextual. As a result, the
Commission found that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment.

In her request for reconsideration, Complainant expresses her disagreement with the appellate
decision and reiterates previous arguments considered 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), at 9-18 (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 presented no
evidence to support reconsideration of the Commission’s finding that the Agency articulated
legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were
pretextual. Further, Complainant presented no evidence to support reconsideration of the
Commission’s determination that the conduct alleged was either sufficiently severe or pervasive
to establish a hostile work environment nor based on her protected classes. As such,
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Complainant has not put forth any persuasive arguments to support granting the request for
reconsideration.

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. 0120172683 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. 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

January 25, 2018
Date