EEOC Appeal 2020000959

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alana W.,1
Complainant,
v.
Chad Wolf,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 2020000959
Hearing No. 520-2019-00083X
Agency No. HS-TSA-00019-2018
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 20, 2019, final
decision concerning her equal employment opportunity (EEO) complaint alleging 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. 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 Federal Air Marshal
(FAM) at the Agency’s New York Field Office in Woodside, New York. Complainant stated that
on July 29, 2017, she was not feeling well and that since it was a non-mission status (NMS) day,
she was able to flex her hours. Complainant stated that she reported to work around 12:00 p.m.
and left for lunch around 2:00 p.m. Complainant stated that when she returned, she remained in
her personal vehicle because her pants were affected by “female issues,” until she left at 5:00 p.m.
Report of Investigation (ROI) at 59,63.
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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On July 30, 2017, Complainant’s first-line supervisor (S1) texted Complainant to ask what time
she reported to work on July 29, 2017. Complainant responded that she showed up “around noon”
because she “had some stuff going on in the morning.” Complainant also informed S1 that she left
“around 2” for lunch, and then “to actually head home around 5.” S1 stated that NMS days start
between the hours of 6:00 a.m. and 9:30 a.m., and Complainant responded that she “should have
called.” ROI at 68-71, 158. S1 also initiated an Incident Tracking Report on July 30, 2017. ROI at
141-3.
On August 5, 2017, Complainant sent S1 her time sheet and requested leave for 9:00 a.m. to 12:00
p.m. on July 29, 2017. S1 denied Complainant’s request, and he noted that Complainant was absent
without leave (AWOL) from 9:00 a.m.-12:00 p.m., and 2:00 p.m.-5:00 p.m. ROI at 164,170.
On August 14, 2017, Complainant submitted a memo as part of the investigation stemming from
the Incident Tracking Report. Complainant stated that she arrived to work around noon due to
“personal female issues.” Complainant stated that she did not tell anyone that she remained in her
personal vehicle in the afternoon because she was “not comfortable” talking about the situation.
ROI at 152-3.
On September 29, 2017, the Assistant Supervisory Air Marshal in Charge (ASAC) issued
Complainant a Notice of Termination During Trial Period. ASAC stated that on July 29, 2017,
Complainant failed to report to work at the established times, and she failed to notify her supervisor
of the change. ASAC noted that Complainant initially claimed that she had worked from 2:00
p.m.-5:00 p.m., and she amended her time records only after she was “confronted.” Complainant
was charged AWOL for six hours on July 29, 2017. ASAC stated that a review of the facility’s
log-in records and video footage showed that Complainant arrived at 12:46 p.m. and exited at 1:27
p.m., which was contrary to Complainant’s statement that she arrived around 12 noon and left at
approximately 2:00 p.m. ASAC concluded that Complainant’s failure to follow policy, and her
demonstrated lack of truthfulness, adversely affected the Agency and its ability to perform its
mission. ROI at 176-9.
On January 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when:
1. 	on August 5, 2017, management denied her request for three hours of sick leave;
and
2. 	on September 29, 2017, management terminated her employment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant
requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

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The Agency did not include a prima facie case analysis because management officials had
articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that he
denied Complainant’s request for sick leave because Complainant did not attempt to notify him of
her late arrival, and she did not make the request until he questioned her about the inconsistent
hours she recorded for July 29, 2017. Regarding claim 2, ASAC stated that he terminated
Complainant’s employment for her failure to follow policy, and her lack of truthfulness regarding
six hours, during which she was AWOL, on July 29, 2017.
The Agency then found that Complainant failed to prove by a preponderance of the evidence that
management’s legitimate, nondiscriminatory reasons were pretexts for discrimination. The
decision 	concluded 	that 	Complainant 	failed 	to 	prove 	that 	the 	Agency 	subjected 	her 	to
discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant filed the instant appeal and provided a brief in support of her appeal. Complainant
argues that she was treated differently than other FAMs due to her sex. For example, Complainant
states that one FAM “called out” a few minutes prior to a flight, and missed a flight because he
was distracted, but he was only suspended and not terminated.
Complainant also argues that her removal was discriminatory because the issue of her AWOL was
“due to a female medical condition.” Complainant states that she was embarrassed to explain why
she was in her personal vehicle “due to the past management behavior towards women.” In
addition, Complainant argues that while ASAC claimed that she changed her reason and that she
was not forthcoming, there is nothing in the record that states that her reason changed, and that she
was forthcoming to S1, who instructed her on how to complete her timesheet.
Complainant states that S1 denied her sick leave request because she did not follow the proper
procedures; however, she entered her time as instructed by S1. Complainant argues that she should
not have been removed for changing her timesheet because she was following instructions, and
she notes that S1 did not agree with the termination.
The Agency opposed Complainant’s appeal. The Agency states that it provided legitimate, non-
discriminatory reasons for its actions and Complainant did not prove that the Agency’s reasons
were pretexts for discrimination based on sex. The Agency notes that while Complainant may
believe that these decisions were motivated by discrimination, she has not identified, nor produced,
any evidence to support her opinion or refute the Agency’s explanation for its decisions. The
Agency requests that the Commission affirm its final decision.

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ANALYSIS AND FINDINGS
Standard of Review
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 Chap. 9,
§ VI.A. (Aug. 5, 2015) (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”).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Complainant may establish a prima facie case of discrimination by providing evidence that: (1)
she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either
that similarly situated individuals outside her protected class were treated differently, or other
circumstances 	surrounding 	the 	adverse 	employment 	action 	give 	rise 	to 	an 	inference 	of
discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530
U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal
quotation marks omitted). In this case, Complainant is member of a protected class based on her
sex, and she suffered adverse employment actions when her sick leave request was denied and
when her employment was terminated.
Complainant has not shown that similarly situated employees, outside of her protected class, were
treated differently. In her appeal brief, Complainant names three FAMs that she alleges were
treated more favorably because they were not removed. However, we note that two of the named

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FAMs are also female. Regarding the male FAM who “called out” a few minutes prior to a flight
and missed a flight because he was distracted, we find that he was not similarly situated because
there is no indication that he was not forthcoming with his supervisors regarding his actions. To
be considered “similarly situated,” the comparator must be similar in substantially all aspects, so
that it would be expected that they would be treated in the same manner. See Complainant v. Dep't
of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), reconsideration denied, EEOC Request No.
05A20020 (Jan. 28, 2002). In addition, we find that Complainant has not presented any evidence
that raises an inference of sex discrimination; and as such, we find that Complainant has not
established a prima facie case of sex discrimination.
However, 	assuming, 	arguendo, 	that 	Complainant 	established 	a 	prima 	facie 	case 	of 	sex
discrimination, we find that the Agency proffered legitimate, nondiscrimatory reasons for its
actions. S1 stated that he did not approve Complainant’s request for sick leave on July 29, 2017,
because she had not followed the established procedures. S1 stated that Complainant did not
inform him in advance that she was going to be out on sick leave, and that he learned that
Complainant was not in the office for the majority of the day from another employee. S1 then
contacted Complainant via text message to obtain additional information. S1 stated that
Complainant informed him that she reported to work around noon because “had some stuff going
on in the morning.” S1 added that when he spoke to Complainant on August 2, 2017, she stated
that she did not have an excuse. ROI at 97-8.
Regarding Complainant’s removal, ASAC stated that he considered Complainant’s failure to
follow established leave procedures and her failure to be forthcoming about her whereabouts on
July 29, 2017. ASAC noted that he considered the fact that Complainant’s statement that she
arrived at 12:00 p.m. and left at 2:00 p.m. was not supported by the Agency’s entry and exit logs
and video footage, which showed that Complainant arrived at 12:46 p.m. and left at 1:27 p.m.
ASAC added that he also considered the fact that Complainant initially attempted to claim that she
worked from 2:00 p.m.- 5:00 p.m., but she did not re-enter the office after her lunch break. ROI at
88-9.
Complainant 	has 	not 	shown 	that 	the 	proffered 	reasons 	were 	pretext 	for 	discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.
On appeal, Complainant states that S1 denied her sick leave request because she did not follow the
proper procedures, but that she entered her time as instructed by S1. However, we note that S1
denied Complainant’s sick leave request because she did not follow proper procedures when she
failed to inform S1 of her need for sick leave in advance. It is undisputed that Complainant did not
contact S1 on the morning of July 29, 2017, to inform him of her need to take sick leave.

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For claim 2, Complainant argues that while ASAC claimed that Complainant changed her reason
and that she was not forthcoming, there is nothing in the record that shows that her reason changed,
and she asserts that she was forthcoming to S1. However, we find that there is evidence that shows
that Complainant was not forthcoming with S1 regarding her work hours on July 29, 2019. S1
stated that he was not even aware that Complainant had not reported to work as scheduled until he
informed by a different FAM. ROI at 97. S1 then followed up with Complainant, who replied that
her late arrival was due to “some stuff going on in the morning,” and she did not disclose to S1
that she did not return to the office, and had she remained in her personal vehicle, when she
returned from her lunch break. ROI at 68-71. S1 also stated that Complainant initially claimed
12:00 p.m.- 5:00 p.m. as regularly worked hours, which he knew to be untrue. After S1 called
Complainant to discuss her submitted timesheet, she revised it. ROI at 96,100.
In addition, ASAC noted that Complainant’s claimed arrival and departure times were not
supported by the Agency’s records, which Complainant did not dispute. ROI at 88-9. As such, we
find that the record supports ASAC’s determination that Complainant was not forthcoming
regarding her work hours on July 29, 2017. While Complainant asserts that she was less than
forthcoming about her issue because of “past management behavior towards women,” she makes
this bare assertion, without providing any evidence that management officials acted improperly
due to her sex. In looking at the evidence in the record, we find that Complainant has not shown
that the reasons provided by S1 and ASAC are not worthy of credence, and she has not shown
pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions, and it should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. 	See Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
In this case, we find that there is no evidence that the Agency’s actions were unlawfully motivated
by Complainant’s sex. While Complainant argues that her AWOL was due to her “female medical
condition,” we note that this only shows Complainant’s motivation for her actions, and she has not
shown that this was the motivation of the Agency officials’ actions. In addition, we find that while
S1 stated that he did not agree with the removal, there is no evidence that ASAC made his decision
to remove Complainant based on her sex. As such, we find that Complainant did not establish that
the Agency discriminated against her based on her sex when it denied her request for sick leave
and terminated her employment during her trial period.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision finding 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
September 11, 2020
Date