Lydia W.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 10, 2019

2019001388 (E.E.O.C. May. 10, 2019)

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

Lydia W.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 2019001388

Hearing No. 451-2014-00256X

Agency No. HS-CBP-00353-2014

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 16,
2018, final order 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.

BACKGROUND

During the period at issue, Complainant worked as an Air Interdiction Agent (“AIA”), 2181, GS-
11 at the Agency’s McAllen Air and Marine Branch in McAllen, Texas.

On March 14, 2014, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on sex (female) when, on December 13, 2013, Complainant was
terminated during her probationary period.

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

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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Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
timely requested a hearing. On September 19, 2018, the AJ issued a decision by summary
judgment, over Complainant’s objection, in favor of the Agency.

On October 16, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact
is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Complainant does
not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the
AJ’s decision on appeal.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

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 a complainant to prevail,
he or 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.
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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, non-discriminatory 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. 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).

Here, we agree with the AJ’s determination that Agency management officials articulated
legitimate non-discriminatory reasons for terminating Complainant’s employment. The Deputy
Director of National Air Security Operations (“NASO Deputy Director”) testified that he decided
to terminate Complainant’s employment based on his discussions with the Deputy Director of
the McAllen Air and Marine Branch (“S2”) and the Supervisory AIA (“S1”). The NASO
Deputy Director further stated that he also considered documentation of “[Complainant’s]
unsatisfactory behavior and attitude;” Complainant’s near exhaustion of the maximum leave
allowed for a trainee enrolled in the Academy; and Complainant’s status as a probationary
employee.

The NASO Deputy Director explained that Complainant was counseled on June 19, 2013,
because she made “false entries in the official duty log” to “[give] the impression that she was
performing her assigned duties when in fact she was not.” The NASO Deputy Director further
explained that Complainant received “unsatisfactory marks” for “Disposition, Interpersonal
Skills and Communication Skills” on her August 30, 2013 Conduct and Efficiency Evaluation,
and Complainant received “unsatisfactory marks” for “Disposition, Personal Conduct,
Communication Skills and Adaptability” on her September 17, 2013 Conduct and Efficiency
Evaluation.

The NASO Deputy Director further explained that Complainant, as a trainee, was only allowed
to miss 24 hours of training. However, the NASO Deputy Director determined that Complainant
was absent on November 29, 2013 (8 hours annual leave), December 3, 2013 (8 hours sick
leave), and December 9, 2013 (absent without pay/unauthorized leave).

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S1 testified that he was Complainant’s first-line supervisor. S1 stated that he advised S2 that
Complainant “would be a safety liability to herself and fellow employees assigned to fly with
her” due to her “documented lack of judgement, documented inability to follow instructions, and
poor attitude.” Specifically, S1 explained that an agent assigned to conduct Operations Duty
Officer (“ODO”) training on April 23, 2013, informed him that Complainant failed to pay
attention and spent time during the training in the “hall joking with another employee.” S1
further stated that on June 19, 2013, he was informed by another agent that Complainant failed to
perform Duty Officer tasks such as answering the phone and logging aircraft departure and
arrival times. The agent informed S1 that he had conducted these duties even though
Complainant had replaced his name with her name on the duty log entries to indicate that
Complainant had completed these tasks.

S2 was Complainant’s second-line supervisor. S2 stated that he recommended Complainant’s
termination to the NASO Deputy Director due to a “series of poor decisions and an anti-authority
attitude.” Regarding Complainant’s December 9, 2013 absence, S2 explained that Complainant
did not request leave in advance and submitted her leave request on December 10, 2013 which
was received by S2 on December 11, 2013.

A copy of Complainant’s termination letter references specific deficiencies in Complainant’s
performance as justification for her termination. The letter indicates that Complainant was
“inattentive during an explanation of Duty Officer responsibilities” in April 2013 and
Complainant received counseling in June 2013 regarding her conduct as a Duty Officer. The
letter further indicates that Complainant had an unscheduled absence on December 9, 2013 and
Complainant was rated “unsatisfactory” on two of her Conduct and Efficiency Evaluations.

A letter dated June 19, 2013, from S1 to the Director of Air Operations, indicates that
Complainant failed to complete her Duty Officer tasks which included answering phone calls
and logging air craft departing and returning times. The letter further indicates that Complainant,
during a meeting with S1, admitted that “she had changed the signatures on the duty log” to
reflect that she completed the entries even though another agent had completed these tasks.

The record includes copies of Complainant’s August and September 2013 Conduct and
Efficiency Evaluations indicating that Complainant had received “unsuccessful” ratings on each.
Specifically, the comments section on Complainant’s August 30, 2013 evaluation states
“[Complainant] has frequently challenged directions given by instructors in an abrupt and
disrespectful manner.” The comments section on Complainant’s September 17, 2013 evaluation
references a September 11, 2013 incident where the firearms instructor “attempted to give
[Complainant] guidance . . . in her shooting position,” but Complainant replied back, “I can’t do
that” and “I’m used to shooting this way.”

The record also includes copies of Complainant’s leave requests. The record indicates that
Complainant took 4 hours of sick leave on November 20, 2013; 8 hours of annual leave on
November 29, 2013; 8 hours of sick leave on December 3, 2013; and Complainant had an
unexcused absence from work on December 9, 2013.
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The December 9, 2013 leave request indicates that Complainant requested leave on December
10, 2013 that was subsequently disapproved on December 16, 2013 because it was an
“unauthorized absence.”

A copy of Complainant’s personnel notification indicates that her appointment was subject to
completion of a one-year initial probationary period beginning on March 29, 2013. Accordingly,
Agency Directive No. 51332-014B states that the probationary period “shall be utilized as fully
as possible to observe an employee’s performance and conduct for the purpose of determining
fitness for continued employment.”

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 sex.

New Basis First Raised on Appeal (age)

Finally, we note that on appeal Complainant raises a new basis. Specifically, Complainant
asserts that she was discriminated against based on her age and sex when the Agency terminated
her employment. There are circumstances in which we allow the addition of a new basis of
discrimination to a formal complaint on appeal. The circumstances of this case, however, do not
support such an outcome. Absent a compelling reason, a complainant may not add a new basis
on appeal. See Valdez v. USPS, EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v.
Department of the Treasury, EEOC Appeal No. 01952240 (March 27, 1997)). Complainant
clearly indicated in her formal complaint, as reflected in the Report of Investigation, that she was
subjected to sex discrimination. At no point did Complainant indicate that she wanted to add the
basis of age. Complainant had ample opportunity to add the basis of age prior to appeal.
Therefore, we determine that Complainant may not add the basis of age to her formal complaint
on appeal. Moreover, there is no evidence in the record supporting a finding of age
discrimination.

CONCLUSION

We AFFIRM the Agency’s final order implementing the AJ’s finding without a hearing, of no
discrimination.

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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.
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 (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

May 10, 2019
Date