0120122648
07-17-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120122648
Hearing No. 480-2011-00677X
Agency No. HS-10-TSA-001234
DECISION
Complainant filed an appeal from the Agency's May 1, 2012, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency's final decision properly found that Complainant did not prove that she was subjected to unlawful harassment and disparate treatment, or denied a reasonable accommodation
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the McCarren International Airport in Las Vegas, Nevada. In May 2004, Complainant injured her right wrist while working with the Agency.
Complainant returned to work on January 23, 2005, and from that date until August 14, 2006, Complainant worked in a light-duty assignment as a ticket checker. In September 2005, Complainant reinjured her right wrist and injured her left knee while working. Complainant underwent two knee surgeries and uses a Lofstrand crutch to help her walk. Complainant has been diagnosed as having De Quervain's tenosynovitis and, possibly, trigger-finger and Carpel Tunnel Syndrome. Complainant has not been able to perform the duties of a TSO since September 2005.
According to Complainant, she has reached maximum medical improvement (MMI) with regard to her knee, but not with regard to her wrist. Complainant asserts that her condition limits her ability to perform manual tasks such as preparing meals because her right hand cramps up and makes her unable to chop vegetables and meats. Complainant further asserts that her condition limits her ability to walk, sleep, stand, bend her knee, concentrate or think, interact with others, and work. Complainant is permanently restricted from lifting more than 20 pounds.1
Consequently, in August 2006, Complainant entered a Vocational Rehabilitation Program (VRP) run by the Department of Labor (DOL). In a letter dated May 3, 2010, the Agency terminated Complainant from her position based on her inability to perform the essential functions of her position.
On September 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (American),2 sex (female), color (brown), and disability when:
1. On an unspecified date, the Agency asked Complainant to resign;
2. On unspecified dates, Complainant was subjected to comments such as "walking wounded," "the druggies are back," "sick bay commandos," and "the walking dead;"
3. On August 14, 2006, the Agency removed Complainant from her light-duty ticket checker assignment but did not provide her with a permanent light-duty assignment;
4. In a letter dated April 13, 2010, the Agency proposed to remove Complainant; and
5. On or about May 5, 2010, the Agency terminated Complainant because of her physical inability to perform the essential functions of her job.
In an investigative statement, Complainant stated that from January 2005 to August 2006, she was a secondary ticket checker in the selectee and handicap lanes. Complainant stated that she believed that the non-limited duty TSOs felt that they worked harder than limited-duty TSOs because limited-duty TSOs had less physically demanding assignments. She stated that limited-duty TSOs were subjected to snide remarks by TSOs and Supervisory TSOs, such as being called the "walking wounded," "sick bay commandos," or "the walking dead." Complainant stated that she did not recall who used those terms, but she recalled that a Lead TSO referred to returning limited-duty TSOs as "druggies." Complainant stated that she reported the matter to her supervisor (S1), who told her to report this matter on a "concern form."
Complainant stated that in August 2006, the administrative office told her that she would be paid by DOL because she was on workers' compensation, but she could not go into the airport to work anymore. Complainant stated that from August 2006 onward, the Agency did not let her go into work at the airport. Complainant further stated that while she was at the administrative office, she was given an exit packet to sign that contained instructions on security issues. She stated that the last page of the packet said she was resigning or was being terminated, but Complainant told the Human Resources Specialist (HR Specialist) that she was not quitting. Complainant stated that the HR Specialist took the paperwork and went to a manager's office (M1) to tell her that Complainant would not sign it. Complainant further stated that she heard M1 say to the HR Specialist that Complainant would be back in 90 days to sign the paperwork anyway, which suggested she would be terminated. Complainant stated that being asked to resign made her angry.
Complainant stated that in April 2011, the Deputy Assistant Federal Security Director for Screening (DAFSD-S) proposed her removal, and about a month later, she received termination notice from the Assistant Federal Security Director for Screening (AFSD-S) on the basis that she was unable to perform the functions of a TSO because of her medical restrictions. Complainant stated that she could not perform all the TSO functions because she was unable to lift 70 pounds, which is the weight TSOs are required to lift. She stated that she has been unable to lift the prescribed amount of weight since her initial injury.
Complainant further stated that she was given duties that she was able to perform for a while after she was injured. Complainant stated that in May 2006 and July 2006, some limited-duty employees had their job assignments taken away from them, and her assignment was taken away in August 2006. Complainant stated that the Agency has not allowed her to return to the airport to work since August 2006. Complainant further stated that other TSO's who had permanent restrictions were not removed from their position or allowed to return to limited-duty status after being removed, including a disabled African-American male (C1), a non-disabled African-American female (C2), and a non-disabled Hispanic female (C3).
Complainant also stated that some of the employees who had been on limited duty with her were selected for positions in the Agency administrative office, but she did not apply for these positions because she is "computer illiterate." Complainant stated that she inquired about being reinstated to a ticket checker or exit lane position, but she was told there were no openings. Complainant also stated that she did not apply for a Lead TSO or Supervisory TSO position because her restrictions were permanent, and the Lead TSOs and Supervisory TSOs have to jump in to help with bags, which she could not do.
The HR Specialist stated that it was possible that he assisted Complainant with her exit package because it was something he probably would do, although he did not specifically remember this matter. He further stated that he did not know if there was a resignation form in the exit package, and employees referred to vocational rehabilitation (VR) were not asked to resign. The HR Specialist further stated that he would not ask anyone to resign, and he did not recall having a conversation with M1 regarding any form that Complainant refused to sign.
The HR Specialist further stated that the process of referring employees to VR did not involve trying to get people to resign, but he told employees that DOL would contact them about VR and that a certain date would be their last day of reporting to the airport. He stated that there may have been some acknowledgment form that employees were asked to sign that indicated that they understood it was their last day at the airport. The HR Specialist stated that he did not think Complainant's claim that M1 said that Complainant would be coming back in 90 days to sign a resignation form was accurate because there was no requirement or expectation that employees referred to VR would come back to the administrative offices for anything.
The HR Specialist stated that after August 2006, Complainant did not return to work at the airport. He stated that only limited-duty TSOs who reached MMI for at a least a year were taken out of the airport in August 2006 and referred to VR. The HR Specialist further stated that others who either had not met MMI at all or had not spent at least a year on limited duty after reaching MMI were not referred to DOL for VR.
With regard to C1, the HR Specialist stated that C1 was not injured until April 2006 and did not reach MMI until October 2007; therefore, he did not meet the criteria for referral to VR in August 2006. Regarding C2, the HR Specialist stated that she was referred to VR in August or September 2006, and in early 2007, the DOL claims examiner informed him that C2 had not been put in any VR program and had not even been referred to a counselor. He stated that by this time, the Agency had changed its policy and did not send people to VR anymore because employees were trained at VR in minimum-wage positions, and the Agency had to pay the difference between Agency pay and minimum-wage for the rest of the employees' lives. The HR Specialist stated that because C2 had not begun the VR process yet, and because of the Agency's policy change, he called C2 back to work. Regarding C3, the HR Specialist stated that she was on limited duty in August 2006 and was not referred to VR at that time because she had not yet reached MMI at that time. He stated that C3 reached MMI on November 7, 2009.
The HR Specialist further stated that in early 2007, he learned that Complainant had been assigned a VR counselor. He stated that at some point in 2006 or 2007, Complainant developed another medical problem and was not able to begin or complete her training program; therefore, the program was put on hold. The HR Specialist stated that this occurred three times, which is why Complainant did not complete her VR program until 2009. The HR Specialist further stated that Complainant kept dropping out and simply not cooperating with VR, so the DOL claims examiner sent a letter to the Complainant saying that they were going to "rate" her. The HR Specialist also stated that the DOL cut her pay based on what she would have been earning had she completed the program. The HR Specialist stated that at that point, the Agency was ready to separate Complainant from service.
DAFSD-S stated that he proposed Complainant's removal because HR brought it to his attention that Complainant did not complete the VR program after she was injured. He stated that he thought that Complainant entered into the program twice but failed to complete it. DAFSD-S further stated that DOL sent a request to Agency headquarters that requested that Complainant be removed from federal service. He stated that employees with permanent restrictions before 2007 were offered VR from DOL, which they either took or resigned.
AFSD-S stated that he removed Complainant from her position because of her physical inability to perform the essential functions of her position. He stated that there were TSOs with permanent physical restrictions who were not removed because a new policy states that the Agency will generally not remove employees on limited duty or seek to have them referred to VR, but Complainant was referred to VR before the new policy went into effect. AFSD-S further stated that the Office of Workers' Compensation Programs (OWCP) advised him that Agency policy permitted Complainant's removal because she had reached maximum improvement (MMI) but still could not perform the full duties of a TSO.
S1 stated that Complainant never reported to him that she was subjected to hearing coworkers refer to limited duty employees as "walking wounded," "druggies," "sick bay commandos," or the "walking dead." He stated that he has never known of anyone within the chain of command or amongst Complainant's coworkers who made derogatory comments about limited-duty employees.
Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant did not comply with the AJ's Order to respond to the Agency's discovery request. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency found that Complainant did not establish that she is a qualified individual with a disability because she could not meet the lifting requirements of her TSO position. The Agency further found that Complainant did not prove that the Agency's non-discriminatory explanations for its actions were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates allegations raised during the investigation. The Agency does not present any arguments on appeal.
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. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Reasonable Accommodation
Complainant alleges that she was denied a reasonable accommodation for her disability. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. �� I630.2(o) and (p).
While the parties do not to dispute Complainant's status as an individual with a disability, the Agency maintains that Complainant is not qualified for a TSO position because she cannot lift 70 pounds. The Commission has found that the ability to lift 70 pounds is a qualification standard for TSOs established by the Under Secretary pursuant to the Aviation and Transportation Security Act (ATSA). See Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720100037 (Mar. 26, 2014); Ellis v. Dep't of Homeland Security, EEOC Appeal No. 012005011 (Nov. 6, 2006); see also Tucker v. Ridge, 322 F. Supp. 2d 738, 740-41 (E.D. Tex. 2004). Complainant acknowledges, and her medical documentation reflects, that she is not capable of meeting the standard. As such, we find that Complainant has failed to establish that she was qualified as a TSO. See Wilkins v. Dep't of Homeland Security, EEOC Appeal No. 0120121285 (Feb. 27, 2013), req. for recons. denied EEOC Request No. 0520130335 (Aug. 5, 2013) (Complainant who could only lift up to 25 pounds not qualified for TSO position because she could meet ATSA-mandated standard of lifting 70 pounds); Houser v. Dep't of Homeland Security, EEOC Appeal No. 0120110386 (June 16, 2011), req. for recons. den., EEOC Request No. 0520110548 (Oct. 7, 2011) (complainant not qualified for TSO position because she could not meet the ATSA-mandated standard of repeatedly carrying and lifting 70 pounds).
The determination of whether an employee is "qualified" does not end at Complainant's TSO position. Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720100037. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id.
We note that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of her current position; or (2) all other reasonable accommodations would impose an undue hardship. Enforcement Guidance on Reasonable Accommodation, EEOC No. 915.002 at Question 24 (Oct. 17, 2002). To establish entitlement to reassignment, a Complainant must show that a vacant, funded position existed during the relevant time period or was likely to open up. Id.; see also Shimmin v. Dep't of Homeland Security, EEOC Appeal No. 0120072428 (June 4, 2009) (screener who could not perform duties of position and requested reassignment not qualified under the Rehabilitation Act because he failed to identify a vacant, funded position that met his medical restrictions during relevant time period). Complainant can establish that vacant, funded positions existed by: (1) producing evidence of particular vacancies; or (2) showing that she was qualified to perform a job or jobs which existed at the agency, and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002).
In this case, Complainant was given a limited-duty assignment as a ticket checker that she was able to perform after she was injured. However, Complainant's physician subsequently indicated that Complainant had reached maximum medical improvement with a 20-pound lifting restriction. Additionally, Complainant did not successfully complete the VR program to which she was referred. As a result, the Agency terminated Complainant based on her inability to perform the duties of her TSO position. The Commission notes that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Camadini v. Dep't of Homeland Security, EEOC Appeal No. 0120103387 (Dec. 5, 2012); see also Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3, 1996). Moreover, there is no evidence in this case that there was a vacant, funded position available to which Complainant could have been reassigned during the relevant time period.
Therefore, we find that Complainant did not prove that the Agency denied her a reasonable accommodation in violation of the Rehabilitation Act. See Camadini v. Dep't of Homeland Security, EEOC Appeal No. 0120103387 (Dec. 5, 2012) (Complainant TSO not denied a reasonable accommodation when he was terminated after physician indicated that he had reached maximum medical improvement with a five-pound lifting restriction and there were no vacant, funded positions available).
Disparate Treatment
In order to prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 pretextual. 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).
For purposes of analysis, and without so finding, we assume arguendo that Complainant established a prima facie case of discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the HR Specialist stated that the process of referring employees to VR did not involve trying to get people to resign, but employees were told that DOL would contact them about VR and that a certain date would be their last day of reporting to the airport. Management further stated that the Agency removed Complainant from her position because of her physical inability to perform the essential functions of her position. Management also stated that, subsequent to Complainant's removal, there were TSOs with permanent physical restrictions who were not removed because a new policy states that the Agency will generally not remove employees on limited-duty or seek to have them referred to vocational rehabilitation (VR). Management stated that Complainant was referred to VR before the new policy went into effect. Management further stated that Complainant was ultimately removed from federal service because she did not complete the VR program and remained unable to perform the duties of her TSO position.
In an attempt to prove pretext, Complainant compares herself to three coworkers. However, the record reveals that these coworkers were not similarly situated to Complainant because they did not reach MMI during the same time period that Complainant reached MMI, and by the time these employees reached MMI, Agency policy no longer provided that employees who had reached MMI would be sent to VR. We find that Complainant has not shown that the Agency's non-discriminatory explanations are pretext for unlawful discrimination.
To the extent that Complainant alleges that she was subjected to harassing comments by coworkers, we note that Complainant stated that she could not recall who called OWCP or limited-duty employees "walking wounded," "sick bay commandos," or "the walking dead." Complainant stated that between January 2005 to August 2006, she would hear employees make such comments "every now and then." Complainant's statement indicates that the comments were uttered sporadically or infrequently. Moreover, while the comments may have been insensitive, we have consistently held that EEO regulations are not general civility codes which seek to rid the workplace of every unpleasantry, insensitive comment, or workplace slight. Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120133401 (May 7, 2015. We find that the alleged comments were not severe or pervasive to constitute a hostile work environment. Consequently, we conclude that the Agency properly found that Complainant did not prove that she was subjected to unlawful disparate treatment or harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency properly found that Complainant did not prove that she was subjected to a unlawful harassment, disparate treatment, or denied a reasonable accommodation for her disability.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 17, 2015
Date
1 We note that, on January 28, 2010, Complainant's physician indicated that Complainant was restricted from lifting more than 15 pounds.
2 In her investigative statement, Complainant stated, "I don't feel I was discriminated against based on my national origin." Report of Investigation (ROI), Exhibit F-1, p. 2.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122648
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122648