0120152233
12-19-2017
Eryn O,1 Complainant, v. Kirstjen Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eryn O,1
Complainant,
v.
Kirstjen Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120152233
Agency No. HS-TSA-01718-2013
DECISION
On June 15, 2015, 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 May 15, 2015, 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., 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
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer at the Agency's Charlotte-Douglas International Airport facility in Charlotte, North Carolina.
On August 30, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (brown), disability (hypertension, diabetes, anxiety, and depression), age (55), and/or reprisal for prior protected EEO activity when:
1. On June 26, 2013, she was directed to undergo an independent medical examination to determine her fitness-for-duty or face disciplinary action or removal.
2. On August 24, 2013, Complainant received a Notice of Proposed Removal.
Complainant subsequently amended her complaint to include the following claims:
3. On September 13, 2013, Complainant was terminated from her employment.
4. On approximately October 1, 2013, Complainant learned from Human Resources Access that her SF-52 action detailed personal medical information, which not only divulged confidential information, but which could negatively impact future employment endeavors.
The Agency accepted the complaint and conducted an investigation. In brief summary, the investigative report reveals the following evidence concerning Complainant's claims:
Complainant said she was diagnosed with hypertension, diabetes, anxiety, and depression, which worsened when her husband passed away in December 2012. In January 2013, Complainant was under a doctor's case and medically limited. As such, she requested leave under the Family and Medical Leave Act (FMLA). In her FMLA paperwork, Complainant indicated that she was having monthly anxiety episodes due to chemical imbalances. She provided supporting medical documentation for her FMLA claims to a Human Resources (HR) Specialist for January, February, March, July, and August in 2013. Complainant returned to her position in June 2013. Based on a review of the Agency's records, the HR Specialist found that Complainant took over 480 hours of FMLA leave from March 2012 to March 2013. During this time, Complainant could not perform her position.
The HR Specialist forwarded Complainant's FMLA requests and her attendance record to the Agency physician for review to see if she met the requirements of her position. The Agency Physician recommended that Complainant have an independent psychological fitness-for-duty evaluation. On June 26, 2013, the HR Specialist directed Complainant to undergo an independent medical examination to determine her fitness-for-duty. On July 25, 2013, Complainant submitted another request for FMLA, noting that she had been referred to a partial hospitalization program due to her anxiety and she might be incapacitated from six to twelve months.
Complainant was scheduled for the psychological examination on July 30, 2013. During the exam, Complainant noted that she experienced high anxiety with being uncomfortable with the exam. The independent psychological review found that Complainant had poor insight; was unreliable; and did not meet the medical guidelines of the Agency. The evaluation also found that there was no accommodation in the workplace that would allow Complainant to perform her job free from stresses, and would ensure her safety or the safety of others. On August 1, 2013, Complainant entered the four-week adult partial hospitalization program and had been approved for FMLA.
On August 24, 2013, Complainant was sent a letter of proposed removal as a result of the fitness-for-duty examination. The removal noted that Complainant failed to maintain the psychological qualification standards for her position due to her medical conditions. On September 3, 2013, Complainant responded to the proposed removal asking for additional time to recover and for a temporary assignment which was "placed in an area where it is quiet" so that she could concentrate. She included a note from her own physician stating that she was unable to work, but could return if she was reintroduced to work at a lessor stress level. On September 13, 2013, the Agency issued its final decision to remove Complainant, effective September 14, 2013, based on her failure to maintain the psychological guidelines of a Transportation Security Officer.
In October 2013, Complainant asked for a copy of her Standard From 50 (SF-50). She was told by an Agency official that her SF-50 needed to be corrected because it contained medical information. Complainant received a corrected version of the form. In addition, Complainant discovered that her SF-52 requesting personnel action indicated that she should be removed for failure to maintain psychological guidelines.
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). 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 Agency determined that Complainant failed to show that she was terminated based on her race, age, color, sex and/or prior EEO activity. Further, as to her claims of discrimination and violations of the Rehabilitation Act, the Agency held that Complainant had not shown that the medical examination of the medical disclosures constituted discrimination under the Rehabilitation Act.
This 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").
Fitness-for-Duty Examination
Whether or not Complainant is an individual with a disability is irrelevant to the issue of whether the Agency properly ordered her to undergo a fitness-for-duty examination because the Rehabilitation Act's limitations regarding disability-related inquiries and medical examinations apply to all employees. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 (July 27, 2000). The inquiry may be made or the examination ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. �� 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002 (July 27, 2000), at Q.5. Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his ability to perform essential job functions or will result in direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. U.S. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).
Here, the HR Specialist indicated that the Transportation Safety Manager (Manager) reviewed Agency employee records regarding excessive leave used under the FMLA. The Manager averred that as an employee nears 480 hours of FMLA leave, like Complainant, the Agency reviewed the FMLA requests and provided the documents for review by a physician to determine if the employee needed to undergo a fitness-for-duty examination. In Complainant's case, she had been out on FMLA leave since January 2013, and her documents failed to indicate whether and/or when she would be returning to the workplace. Therefore, upon review of the record, we find that the request for a fitness-for-duty examination was not a violation of the Rehabilitation Act because the Agency adequately established that it was job-related and consistent with business necessity.
Termination - Disability-Based Discrimination
Under the Commission's regulations, the Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
An individual with a disability is "qualified" if he or she meets the skill, experience, education, and other job-related requirements of the position at issue and can perform the position's essential functions with or without reasonable accommodation. 29 C.F.R. � 1630.2(m). In this case, the Agency argues that Complainant is not qualified for her supervisory Transportation Safety Officer position because she does not meet the position's medical qualification requirements.
The Agency asserts that Complainant is not qualified for her position because she cannot meet the medical requirements mandated by the Aviation Transportation and Security Act (ATSA). Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001, "to improve aviation security" by effecting "fundamental change in the way [the United States] approaches the task of ensuring the safety and security of the civil air transportation system." H.R. Conf. Rep. No. 107-296, at 53 (2001), reprinted in 2002 U.S.C.C.A.N. 589, 590. Toward that goal, Congress created a new Agency, the TSA, which has sweeping responsibility for airport security screening, including setting the qualifications, conditions, and standards of employment for airport security screeners. 49 U.S.C. � 114. Section 111(d) of the ATSA, codified as a note to 49 U S.C. � 44935, states, in pertinent part:
Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions . . ..
49 U.S.C. � 44935 note, 115 Stat. 597, 620.
The statute requires that security screeners "demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol," 49 U.S.C. � 44935(e)(2)(A)(v), and "possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor stills," Id. � 44935(f)(1)(B). The ATSA also provides that "at a minimum [a security screener must] meet such other qualifications as the Under Secretary may establish." Id. � 44935(e)(2)(A)(iv).
Nevertheless, the Commission has held that the ATSA does not divest the Commission of jurisdiction over a complaint brought by a TSO against the Agency under the Rehabilitation Act or other statutes the Commission enforces. Kimble v. Dep't of Homeland Sec, EEOC Appeal No. 0120072195 (Nov. 24, 2009). Although Congress gave the Agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from � 501 of the Rehabilitation Act and the other employment discrimination laws. Chapman v. Dep't. of Homeland Sec, EEOC Appeal No. 0120051049 (Aug. 6, 2008), req. for recon. denied, EEOC Request No. 0520080805 (Dec. 11, 2008); Adams v. Dep't. of Homeland Sec, EEOC Appeal No. 0120054463 (Aug. 31, 2007); Getzlow v. Dep't. of Homeland Sec, EEOC Appeal No. 0120053286 (June 26, 2007), req. for recon. denied, EEOC Request No. 0520070839 (Oct. 12. 2007). Accordingly, the Commission has authority under the Rehabilitation Act to hear complaints involving TSO positions. Id.
Moreover, in Getzlow, the Commission found that, although a complainant must show that he or she meets standards established pursuant to the ATSA to be qualified under the Rehabilitation Act, not all of these standards will conflict with the Rehabilitation Act. Getzlow, EEOC Appeal No. 0120053286. The Agency must comply with the requirements of the Rehabilitation Act where there is no conflict between the qualifications established pursuant to the ATSA and the requirements of the Rehabilitation Act. Id. If a conflict exists between the two standards, however, the ATSA standard will supersede any Rehabilitation Act requirements to the contrary. Id.
Here, the Agency indicated that Complainant failed to meet the guidelines for an Anxiety-Related Dysfunction, as well as its Psychological Guidelines regarding Eligibility for Access to Classified Information. Although the Rehabilitation Act traditionally requires that agencies using qualification standards that screen out individuals with disabilities on the basis of disability show that the standards are job-related and consistent with business necessity, our precedent dictates that qualification standards developed under the ATSA are not subject to this requirement. See id. Accordingly, in this case, Complainant must show that she can meet the Agency's standards concerning anxiety and the psychological guidelines regarding access to classified information. Complainant has not made that showing. Accordingly, she has not shown that she was qualified for her supervisory Transportation Safety Officer position.
Complainant asserted that she should have been provided with another assignment which would have allowed her to ease her return to the workplace. The discussion of "qualified" does not end at Complainant's position of record. 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. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Complainant assert that she could have been provided with a reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).
Complainant has an evidentiary burden in such reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which complainant could have been reassigned. Complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting Complainant's evidentiary burden. In the alternative, Complainant need only show that: (1) she was qualified to perform a job or jobs which existed at the agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. In the case at hand, Complainant has not made any showing that there were other positions to which she could have been reassigned. Therefore, we find that Complainant has not demonstrated that she was a qualified individual with a disability covered under the Rehabilitation Act. As such, she has not shown that the Agency failed to provide her with a reasonable accommodation and/or violated the Rehabilitation Act when she was terminated from her position.
Disparate Treatment - Termination based on Race, Sex, Color, Age, and/or Reprisal
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided legitimate, nondiscriminatory reasons for its termination, namely that Complainant was not medically qualified for her position. Complainant has not shown that the Agency's reason constituted discrimination based on her race, color, sex, age and/or in retaliation for prior EEO activity.
Medical Disclosure
Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records.2 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14. These requirements also extend to medical information that an individual voluntarily discloses to an employer. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000) (Guidance I). The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired or the employment relationship ends. See ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations, at 18 (October 10, 1995) (Guidance II). These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. See Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003); Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000); Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (Jan. 11, 2011), req. for recon. den'd, EEOC Request No. 0520110302 (Apr. 29, 2011). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997).
The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement: supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14; Guidance I, at 4. The Commission has also interpreted the ADA to allow employers to disclose medical information to state workers' compensation offices, state second injury funds, workers' compensation insurance carriers, and to health care professionals when seeking advice in making reasonable accommodation determinations. Guidance I, at 4 n.10. Additionally, employers may use medical information for insurance purposes. Id.
In the case at hand, Complainant asserted that the Agency violated medical confidentiality when she learned that her SF-52 stated that her proposed removal was based on her "failure to maintain psychological guidelines" and her SF-50 stated that Complainant was removed because of her "medical inability to perform the essential duties of [her] TSA position." Here, the Commission finds that the Agency's disclosure of Complainant's inability to maintain psychological guidelines in her SF-52 does not constitute an improper disclosure of confidential medical records because it is not a document that is released or maintained in Complainant's personnel file. As to the SF-50, the document does not disclose information about Complainant's medical condition, her past medical history, or treatment options. Complainant has not cited any previous federal sector cases or federal court cases that have held that such a disclosure constitutes a violation of the Rehabilitation Act. See Brew v. Dep't of Justice, EEOC Appeal No. 0120090045 (Sept. 13, 2011).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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 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.
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 19, 2017
__________________
Date
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.
2 The Rehabilitation Act was amended so that the standards under Title I of the ADA would be applied to employment discrimination cases under the Rehabilitation Act.
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