Liza B.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

2019001148 (E.E.O.C. Apr. 26, 2019)

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

Liza B.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019001148

Agency No. HS-TSA-01881-2013

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 26,
2018, final decision concerning an equal employment opportunity (EEO) complaint claiming
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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Manager, H-Band at Los Angeles International Airport in Los Angeles, California.

On November 5, 2013, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on race (Hispanic), sex (female), age (YOB: 1968), and reprisal
for prior protected EEO activity when:

1. on or about June 18, 2013, the Agency initiated a removal action against
Complainant;

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. on June 18, 2013, the Agency issued Complainant a Removal-Last
Chance/Abeyance Agreement (RLC/AA);

3. on or about July 11, 2013, the Agency determined that Complainant did not
comply with the terms of the RLC/AA and it reinstated the removal action,
thereby, terminating Complainant’s employment.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. The Agency
issued a final decision after Complainant withdrew her initial request for an AJ hearing.

On October 26, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The Agency also dismissed claims 1 and 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim.2

The instant appeal followed. On appeal, Complainant, through her representative, does not
submit additional statements or briefs.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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.

2 On appeal, Complainant does not challenge the dismissal of these claims on procedural
grounds. Therefore, we need not discuss these dismissed claims further in our discussion below.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 3

Agency management articulated legitimate, nondiscriminatory reasons for terminating
Complainant’s employment.

The Deputy Federal Security Director (“DFSD”) testified that Complainant did not comply with
the terms of the RLC/AA because Complainant violated Agency policy when she failed to
protect Sensitive Security Information (“SSI”). The DFSD explained that in accordance with the
RLC/AA, “failure to abide by a valid TSA rule, procedure, or policy may be cause for reinstating
the removal action.” The DFSD stated that Complainant failed to secure the Screen Passengers
Observation Technique (“SPOT”) standard operation procedures binder, which was a type of
SSI. The DFSD explained that the SPOT binder had a “bright pink cover and language denoting
the contents within as SSI.” The DFSD further stated that Complainant received the binder on
June 8, 2013, failed to follow her supervisor’s instruction to log in the binder, and left the binder
unsecured on the supervisor’s desk. The DFSD clarified that the Agency requires that these
binders be secured because they contain SSI, and employees receive annual training on securing
records with SSI. The DFSD determined that Complainant’s actions violated Management
Directive 100.73-5, sections 5.A2 and 5.A7; Management Directive 2810.1, “SSI Program”
section 5.A(a)(1)(2) and (6); the Agency handbook section 5.1 – General Protection of SS1; and
49 C.F.R. part 1520.9.

A copy of the June 18, 2013 RLC/AA states that “[i]f [Complainant] does not abide by a valid
TSA rule, procedure, or policy, it may be cause for reinstating the removal action.”

A copy of the July 11, 2013 Reinstatement of Removal Action notice indicates that
Complainant’s removal was reinstated for failure to comply with terms of the RLC/AA. The
notice specifically addresses the June 8, 2013 incident where video footage shows that
Complainant received the SPOT binder “clearly labeled” and identified as SSI, with a florescent
pink sheet and placed it aside instead of securing it in a locked desk or file cabinet as required.
The notice further indicates that Complainant’s removal was effective July 11, 2013.

The record includes relevant provisions from section 5 of the Agency’s handbook on protecting
SSI. This section states that “personnel who process records containing SSI are responsible for
ensuring those records are protected at all times” and must ensure that SSI is “disclosed only in a
secure manner.” The handbook further states that “when not under direct physical control” of a
record containing SSI, personnel are required to “lock up the record.”

3 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
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After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on her race,
sex, age, and reprisal for prior protected EEO activity.

Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.

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

April 26, 2019
Date