Annette B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration (TSA)), Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120171950 (E.E.O.C. Oct. 31, 2018)

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

Annette B.,1
Complainant,

v.

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

Appeal No. 0120171950

Agency No. HSTSA267562016

DECISION

On May 12, 2017, 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
April 12, 2017 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

Introduction

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Agency’s Missoula International Airport (MIA) in Missoula,
Montana. On October 3, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (Presbyopia) and age (61) when it removed
her from federal service about July 12, 2016. Complainant has worked at the Agency, at
different locations, since October 2002.

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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The Agency accepted Complainant’s complaint for EEO investigation.

Investigation

During the EEO investigation, Complainant stated that she has age-related vision change
(Presbyopia). She stated that her condition affects her ability to see and focus properly and she
needs to wear corrective lenses to perform computer work, read materials up close, and to see
distances far away. Complainant stated that she was unaware of her medical condition until her
diagnosis on June 8, 2016, and she alerted her supervisor as soon as she became concerned after
taking her Image Mastery Assessment (IMA) on June 6. (Complainant stated that IMA images
were blurry.) Complainant stated that she received a second opinion on June 12, 2016.
Complainant stated that her physician prescribed her trifocal corrective lenses, which she
purchased, shortly before her removal. Complainant stated that she requested an opportunity to
retest a fourth time but was not allowed to do so. She stated that the image resolution on the
IMA was smaller than that on the checkpoint ray machines or TRX practice simulator.2

Complainant’s third level supervisor, an Assistant Federal Security Director for Screening, (S1)
stated that he was not aware of Complainant’s disability until she failed the IMA, and stated she
had vision problems and would need trifocals. S1 stated that the IMA determines an employee’s
ability to detect threats on an x-ray. S1 stated that the test is computer-based and is given to
TSOs annually. He stated Agency policy requires removal after three failed attempts at the IMA.
S1 stated his “hands were tied” once Complainant failed the IMA the third time. He stated that
Complainant was not pressured to take the test until she was ready, and should have raised her
vision issues before she took the test the third time. S1 noted that there was a scoring glitch in
2016, but based on Complainant’s score and review of her assessment, the glitch did not affect
her score. TSOs are given a remediation period between reassessments.

An Agency Training Specialist (T1) stated that Complainant received three “legitimate failed
scores” so she was not allowed to retest and was removed from employment consistent with
Agency policy. T1 stated that Complainant’s scores were not impacted by the Agency scoring
error. T1 stated that if Complainant needed glasses to test, it was her responsibility to wear them
during the IMA.

In pertinent part, the record contains the documents that follow.

▪ A Notice of Proposed Removal, dated June 6, 2016, charging “Failure to Meet
Conditions of Employment – Annual Proficiency Review (APR) Assessment –
Image Mastery Assessment (IMA).” The Notice stated that Complainant failed
the IMA on May 4, 2016, May 25, 2016, and June 6, 2016 after remediation
between unsuccessful attempts. The Notice allowed Complainant an opportunity
to respond to the charge.

2 Complainant stated, between each failed IMA attempt, employees are given remediation and
practice testing on a simulator.
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▪ Prescriptions, dated June 8, 2016 and June 15, 2016, for spectacles for
Complainant.

▪ A Notice of Decision, dated July 12, 2016, removing Complainant from
employment citing “Failure to Meet Conditions of Employment.” The Notice
stated that Complainant attempted the IMA three times over the course of a month
and failed each time.

▪ An Agency Office of Professional Responsibility Appellate Board Opinion and
Decision, dated September 9, 2016, denying Complainant’s appeal of her
removal.

▪ The Annual Proficiency Review User’s Guidance, 6.2. Remediation and
Reassessment Process:

A. Employees must be assessed and evaluated on their ability to perform
the screening function(s) that they regularly conduct on duty. Each APR
assessment has a remediation and reassessment process designed to
provide employees who do not pass on an initial attempt with two
additional opportunities to demonstrate proficiency, as applicable. . . .

E. Employees who fail any single scored PSE assessment two times or
any other APR assessment three times are subject to removal from [the
Agency].

Post-Investigation

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge or an immediate final agency decision. In
accordance with Complainant’s request, 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.

The instant appeal from Complainant followed. On appeal, Complainant stated that, on June 24,
2016, she informed the Agency of her vision problems and need for corrective lenses, but the
Agency failed to accommodate her disability when it would not allow her to retest using her
corrective lenses. Complainant noted that the Agency terminated her employment eighteen days
after her request for accommodation. Further, Complainant stated that there were issues with the
2016 IMA, which resulted in others failing the test, and the Agency changed the test in 2017 due
to the 2016 concerns. Also, Complainant stated that employees are now given four opportunities
to pass the assessment.

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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. (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”).

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).

The question of whether an applicant for or incumbent of a TSA security screener position who
does not meet one of the TSA mandated job qualifications is nonetheless entitled to reasonable
accommodation for a disability was addressed in Getzlow v. Dep’t of Homeland Security, EEOC
Appeal No. 0120053286 (March 22, 2007). In Getzlow, it was determined that a security
screener applicant who had bi-polar disorder could not meet the TSA imposed requirement that
security screeners “be able to hear and respond to the spoken voice and to audible alarms
generated by screening equipment in an active checkpoint environment.” For that reason, in
Getzlow, the Commission decided that TSA “did not run afoul of the Rehabilitation Act when it
terminated consideration of her application.”

Here, the gravamen of Complainant’s claim is that the Agency unlawfully denied her reasonable
accommodation when it removed her from Federal employment after she failed an employment
qualification test three times. Complainant was a Transportation Security Officer who had to
successfully complete a battery of tests annually to recertify for her position. One required test
was the Image Mastery Assessment, which is computer-based and determines an employee’s
ability to detect threats on an x-ray. Complainant took the Image Mastery Assessment on May 4,
2016, May 25, 2016, and June 6, 2016, and failed each time. The Agency gave Complainant
remediation and a practice simulation after her first two unsuccessful attempts. Complainant
stated that the actual x-ray machine and practice simulator were different from the computer-
based assessment, which she described as having blurry images.

Following Complainant’s third unsuccessful attempt at passing the assessment, Complainant
visited an eye doctor who diagnosed her with age-related vision change/Presbyopia, and
informed her that she needed trifocal corrective lenses. Complainant stated that she was unaware
of her medical condition until her diagnosis on June 8, 2016, and a second opinion on June 12,
2016.
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Complainant stated that she requested an opportunity to retest a fourth time but was not allowed
to do so. The Agency removed Complainant from federal employment July 12, 2016, citing
“Failure to Meet Conditions of Employment.”

Management stated Agency policy requires removal after three failed attempts at the Image
Mastery Assessment. The Agency stated that it did not pressure Complainant to take the test
until she was ready, and she should have raised her vision issues before she took the test the third
time. The Agency acknowledged a scoring glitch in 2016, but stated that Complainant’s scores
were “legitimate” and were not impacted by the glitch.

Pursuant to its statutory authority, TSA has promulgated a rule requiring that security screeners
recertify annually their ability to perform screening functions. It is undisputed that Complainant
could not satisfy that requirement during the three attempts she was given in May and June 2016.
Consistent with the analysis in Getzlow, the Agency was correct in finding against Complainant
on her Rehabilitation Act claim. Generally, an individual with a disability must inform the
Agency that an accommodation is needed, which did not occur here before her three attempts at
passing the Image Mastery Assessment. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002 (October 17, 2002). See also, Seyfang. Department of Homeland Security, EEOC
Appeal No. 0120054534 (January 25, 2008). Further, we find that Complainant failed to show
that the Agency discriminated against her based on age when it terminated her employment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision.

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.
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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.
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.

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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

October 31, 2018
Date