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

Equal Employment Opportunity Commission

Dec 7, 2018

0120172847 (E.E.O.C. Dec. 7, 2018)

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

Chadwick S.,1
Complainant,

v.

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

Appeal No. 0120172847

Agency No. HSTSA248282015

DECISION

On August 24, 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
July 20, 2017, final decision concerning his 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Agency’s Boston Logan Airport facility in Boston, Massachusetts.

On August 17, 2015, Complainant contacted an EEO Counselor. On October 12, 2015,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of disability (Physical) and reprisal for prior protected EEO activity when:

1. On July 2, 2015, a Supervisory Transportation Security Officer (STSO)
questioned the validity of Complainant’s Family Medical Leave Act (FMLA)
documentation and read it aloud to him, before denying his request for light duty;

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 August 6, 2015, someone wrote the word “RAT” next to Complainant’s name
on a work rotation sheet;
3. On August 7, 2015, Complainant’s work hours and work location were changed
by management;
4. On August 21, 2015, Complainant’s work hours and work location were again
changed by management; and
5. On September 23, 2015, Complainant was terminated from the Federal Service.

The pertinent record reveals the following facts. Complainant was hired on December 29, 2013,
to work as a Transportation Security Officer (TSO). As a new TSO, Complainant was subject to
a two-year probationary period. All of the incidents at issue occurred within the two-year
probationary period.

Complainant reported to the Supervisory Transportation Security Officer (“STSO”). His second-
line supervisor was the Transportation Security Manager (“TSM1”). All three were aware that
Complainant claimed a medical condition.

Claim 1: Questioned Regarding his FMLA Status and Denial of Request for Light Duty

Complainant identified his medical condition as “bulging discs” in his back. Complainant stated
that on July 2, 2015, STSO questioned the validity of Complainant’s FMLA documentation and
denied his request for light duty. He stated the conversation occurred within the earshot of other
employees. STSO claimed that Complainant was not on her list from Human Resources (“HR”)
of employees approved for FMLA leave. He said they then moved the conversation to the break
room where they were alone. Complainant also alleged that he requested light duty in the form
of not working the “AIT” position, which required repetitive bending and twisting. He said that
STSO denied his request.

According to STSO, in April 2015, Complainant asked TSM1 to be taken off leave restrictions.
TSM1 asked STSO to talk with Complainant and review his absences. STSO and Complainant
discussed Complainant’s FMLA in June 2015. Complainant asserted that his absences in April
should be counted as FMLA. He also said that his prior supervisor had approved the FMLA
leave. STSO told Complainant that only HR could approve FMLA leave and light duty. STSO
told Complainant the proper procedures for obtaining FMLA and approval for light duty from
HR. She added that she believed this conversation occurred in late June and not on July 2.

Complainant submitted medical documentation to HR in July 2015, after obtaining medical
treatment. On July 9, 2015, Complainant’s light duty request was provisionally approved by HR.

On July 16, 2015, in an email to HR, Complainant complained that STSO violated his FMLA
and HIPAA privacy rights. TSM1 was copied on the email. On July 20, 2015, TSM1
interviewed both Complainant and STSO concerning the complaint. Complainant’s reprisal
claim is premised on his reporting STSO for violating his HIPAA and FMLA privacy rights.

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Claim 2 –The Word “RAT” Was Written on the Rotation Sheet

On August 6, 2015, Complainant noticed that the word “RAT” had been written on the rotation
schedule, next to Complainant’s name. Complainant viewed the “RAT” notation as retaliation
for complaining about his treatment by his supervisor. Complainant raised the issue with TSM1,
via e-mail, on August 7, 2015. The Assistant Federal Security Director for Law Enforcement
(“AFS Director for Law Enforcement”) stated he instructed TSM1 to reassign Complainant to
another terminal to avoid contact and diffuse the tension with STSO. The AFS Director for Law
Enforcement stated he conducted an investigation into Complainant’s allegations against STSO,
which included a review of CCTV recordings, and concluded the allegations lacked evidentiary
support. The record contains a written report concerning the evidence and results of the
management inquiry by the AFS Director for Law Enforcement.

Claims 3 and 4 - Changes to Work Hours and Location

When Complainant reported to his checkpoint in Terminal E, on or around August 7, 2015,
TSM1 told Complainant that he was being reassigned to Terminal C pending the completion of
the investigation into his allegations against STSO. Complainant objected and indicated he
wished to remain in Terminal E. TSM1 allowed him to remain in Terminal E. However, on
August 21, 2015, TSM1 reversed that decision and informed Complainant that he was being
reassigned to Terminal C. Complainant objected to the reassignment through his union.
Complainant claimed that he lost money because of the reassignment as he lost his late-night
differential (approximately $200/paycheck) and had to pay for a month’s parking in a different
garage.

Claim 5 – Termination

On September 23, 2015, Complainant received a formal termination letter, signed by the
Assistant Federal Security Director for Screening (“AFS Director for Screening”). The
termination letter stated that Complainant was being terminated during his probationary period
because, on various identified dates in August 2015, he failed to fully cooperate with
management directives and inquiries. The termination letter details Complainant’s alleged lack
of cooperation with the investigation conducted by the AFS Director for Law Enforcement into
the allegations against TSM1, including Complainant challenging his authority to conduct the
inquiry. It also asserts that on another date, Complainant refused to speak/cooperate with TSM1
while she was attempting to provide him with work-related instructions. The letter concluded
that, based on Complainant’s conduct, it was appropriate to terminate him “to promote the
efficiency of the service” during his probationary period.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ).
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When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The Agency determined that Complainant established that he was a
qualified individual with a disability. The Agency stated that “while the record is unclear as to
whether Complainant ever requested, or received, an accommodation for his disability, the
record contains no indication that Complainant was unable to successfully perform the essential
functions of his position.” In finding no violation of the Rehabilitation Act, the Agency noted
that Complainant conceded that issues 2 to 5 were not related to his disability. The Agency
reasoned that claim 1 pertained to his HIPAA and FMLA claims, rather than the Rehabilitation
Act. The Agency concluded that Complainant’s employment was terminated on September 14,
2015, during his probationary period, for legitimate, non-discriminatory/retaliatory reasons, after
he refused to cooperate with TSA management instructions and inquiries on several dates.

The instant appeal followed.

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”).

Disability Discrimination

As noted above, the Agency correctly determined that Complainant only raised a claim of
disability discrimination with regard to claim 1, concerning STSO’s alleged denial of his FMLA
leave and request for light duty.

The Rehabilitation Act Section 501, as amended, applies the standards in the Americans with
Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for
employment. The ADA says that an employer may not “discriminate against a qualified
individual with a disability.”

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Disability is defined as pertaining to an individual who has a physical or mental impairment that
substantially limits one or more of the major life activities “or is regarded as having such
impairment; a record such an impairment or being regarded as having such an impairment,” 29
C.F.R. § 1630.2(g). For purposes of our analysis, we will assume, without finding, that
Complainant was a qualified individual with a disability.

Here, we conclude that Complainant failed to show that the Agency discriminated against him
based on his medical condition. The weight of the evidence shows that rather than denying his
requests for FMLA leave and light duty, STSO merely instructed Complainant that he had to
direct his requests to Human Resources (HR), the management entity empowered within the
Agency to grant his requests. Once Complainant made his request to HR, his request for light
duty was provisionally approved pending his submission of proper medical documentation to
support his requests. There is simply no evidence that Complainant was treated adversely
because of his medical condition. Moreover, to the extent that he is alleging violations of FMLA
and HIPPA, those statutes are not enforced within the 29 C.F.R. Part 1614 EEO complaint
process. Finally, to the extent that Complainant is also alleging disability discrimination (in
addition to reprisal) regarding the remainder of his claims, for the reasons discussed below, he
has failed to prove, by a preponderance of the evidence, that his disability played any role in the
matters raised in his complaint.

Retaliation Claim

Section 717 of Title VII requires federal agencies to proactively ensure that the workplace is
made free of discrimination, including retaliation for engaging in protected activity.

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, 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. 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 Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Even assuming that Complainant established the elements of his prima facie retaliation claims,
the Agency articulated a legitimate, non-discriminatory reason for its actions. His supervisor
questioned him regarding his requests for FMLA and light duty based on her concerns that only
HR had the authority to approve such requests. The record shows his hours and location were
changed to diffuse workplace tension and facilitate a management inquiry into his allegations
against his immediate supervisor.
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Finally, Complainant was issued a notice of termination during his probationary period based on
management’s perception that he had engaged in unacceptable conduct.

Complainant did not prove, by a preponderance of the evidence, that these reasons were a pretext
for unlawful discrimination/retaliation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final 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 tends 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).
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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

December 7, 2018
Date