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

Equal Employment Opportunity Commission

Feb 14, 2018

0120160268 (E.E.O.C. Feb. 14, 2018)

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

Floyd L.,1
Complainant,

v.

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

Appeal No. 0120160268

Agency No. HS-TSA-01131-2014

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the September 26, 2015 final Agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Transportation Security Officer (STSO) at the Memphis International Airport in Memphis,
Tennessee. In December 2013, Complainant underwent a surgical procedure to implant a
defibrillator/pacemaker. On January 13, 2014, Complainant’s doctor released him to work with
restrictions of no lifting more than two pounds and no lifting his left arm above his shoulder.
Complainant claimed that he reported to work on January 13, 2014, but the Transportation
Security Manager (TSM) told him to stay home until he could return to full duty with no
restrictions. Further, Complainant alleged that TSM advised him that Memphis did not offer
light or limited duty for an elective surgery and for Complainant to keep using leave until he was

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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released to full duty. Complainant used leave until his doctor released him for full duty without
restrictions on February 3, 2014.

On February 3, 2014, Complainant claimed that he was talking with a co-worker about the
passenger/pacemaker screening guidelines. Complainant stated that he told the co-worker that
his pacemaker prevented him from standing inside of the walk-through metal detector.
Complainant believed that TSM either overheard the conversation or was informed by someone
of the conversation. The next day, TSM met with Complainant and told him that the previous
day’s conversation raised concerns regarding his ability to perform the duties of his position.
Based on these concerns, TSM gave Complainant a form for his doctor to complete by February
17, 2014. Complainant left the office, but TSM called him to return to his office to sign
additional paperwork. Complainant claimed that TSM provided him a medical release form and
a Job Analysis Tool (JAT). Complainant alleged that TSM would not let him read the
paperwork and the medical release form had the “Sick Leave/Family Medical Leave” box
checked. Complainant claimed that when he asked about the checked box, TSM told him it was
“the only section available for this matter.”

On February 17, 2014, Complainant attended training at the Federal Law Enforcement Training
Center in Georgia. Complainant claimed that while he attended the training he kept receiving
calls from TSM and emails from the Human Resources Specialist (HRS) regarding his
paperwork. Complainant informed TSM that the paperwork had been completed by his doctor
and was in the mail. Complainant claimed that TSM asked if Complainant’s wife could bring
the paperwork to the airport that day. Complainant stated that his wife submitted the paperwork
that day.

On February 26, 2014, Complainant stated that he received an email from HRS indicating that
his medical documentation was incomplete. Specifically, HRS informed Complainant that the
submitted medical documentation did not include information regarding Complainant’s
prognosis and diagnosis. On March 1, 2014, Complainant returned from training, and HRS
followed up with Complainant regarding the medical documentation. At the end of his shift on
March 4, 2014, Complainant claimed that TSM informed him that he could not return to work
until the matter was resolved. On March 5, 2014, Complainant’s doctor submitted the requested
documentation.

On March 31, 2014, the Federal Occupational Health Service (FOHS) Doctor reviewed
Complainant’s medical documentation and determined that Complainant was medically
disqualified for the STSO position based on Complainant’s diminished ejection fraction2 and his
inability to lift more than 30 pounds. Complainant claimed that his doctor mistakenly told the
FOHS Doctor that he could not lift more than 30 pounds. Complainant claimed that he could lift

2 According to the FAD, an ejection fraction is a “measurement of how much blood the left
ventricle pumps out with each contraction,” and “a normal heart’s ejection fraction may be
between 55 and 70.” Ejection Fraction Heart Failure Measurement (2015), http://www.heart.org.
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more than 30 pounds, but less than 50 pounds. Additionally, Complainant believed that his
cardiologist would have been the appropriate doctor to ask about his ejection fraction abilities.

On April 2, 2014, TSM issued Complainant a Notice of Proposed Removal based upon his
medical disqualification. Complainant, through his attorney, provided a written response to the
proposed removal notice. Therein, Complainant argued that while the requirements of his
position include the ability to lift over 70 pounds, he has never been asked to lift over 70 pounds
and the Agency employee handbook instructs employees to get assistance when lifting over 50
pounds. Complainant further noted that his performance had never been questioned and his 30-
pound lifting restriction would not affect his ability to perform the duties of his position. On
April 24, 2014, the Assistant Federal Security Director (AFSD) issued Complainant a Notice of
Removal Decision upholding the proposed removal.

On July 21, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of disability and age
when:

1. On January 13, 2014, the Transportation Security Manager (TSM) instructed
Complainant to stay home because Memphis did not have light and/or limited
duty for elective surgery;

2. In January 2014, TSM eavesdropped on a conversation Complainant was having
with a co-worker about his medical information, and TSM later asked
Complainant to sign a medical release form;

3. From February 17 to March 1, 2014, TSM and a Human Resource Specialist
(HRS) repeatedly called Complainant to request medical documentation;

4. On March 31, 2014, the Agency determined that Complainant was medically
disqualified for his STSO position;

5. On April 2, 2014, Complainant received a Proposed Removal; and

6. On April 24, 2014, Complainant received a Notice of Removal from the Assistant
Federal Security Director (AFSD).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially determined that Complainant was not a qualified individual
with a disability as he was unable to perform the essential functions of his STSO position due to
his heart condition. Specifically, Complainant admitted that he had an ejection fraction of 35
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percent and was precluded from lifting over 30 pounds. Under the Agency’s medical guidelines,
individuals with a history or current coronary artery disease must have an ejection fraction
greater than 45 percent and be able to lift 70 pounds. Even assuming that Complainant was a
qualified individual with a disability, the Agency found that management had articulated
legitimate, nondiscriminatory reasons for his medical disqualification and removal. Again,
Complainant’s ejection fraction was measured at 35 percent and he was only able to lift 30
pounds. Based on Complainant’s medical disqualification, TSM issued Complainant a Notice of
Proposed Removal. AFSD reviewed Complainant’s response and ultimately decided to issue
Complainant the Notice of Removal Decision upholding the proposed removal for
Complainant’s failure to meet the medical guidelines of the position. The Agency concluded
that Complainant failed to show that management’s reasons for its actions were pretextual.

With respect to Complainant’s hostile work environment claim, the Agency determined that
Complainant failed to show that the conduct at issue was based on discriminatory animus. More
specifically, as to claim (1), TSM denied that he told Complainant to stay home because there
were no light duty positions available. With respect to claim (2), TSM explained that the Human
Resources Department instructed him to request medical documentation from Complainant due
to a report it had received regarding Complainant’s pacemaker. Regarding claim (3), TSM stated
that he was following up with Complainant with respect to the passing of the deadline for the
medical documentation. HRS confirmed that he contacted Complainant several times by email
regarding the required overdue medical documentation. As to claim (5), TSM stated that he
issued the Notice of Proposed Removal for failure to meet the medical guidelines. TSM
affirmed that he based the notice on the FOHS Doctor’s determination that Complainant was
medically disqualified from his STSO position in accordance with the Agency’s medical
guidelines based on Complainant’s ejection fraction and his inability to perform the physical
activities mandated for his position.

The Agency concluded that Complainant failed to show that the incidents alleged were based on
discriminatory animus. As a result, the Agency found that Complainant had not been subjected
to discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he is a qualified individual with a disability with or
without an accommodation. Complainant claims that the Agency’s policy requiring him to lift
70 pounds was arbitrary and had not been enforced prior to his removal. Complainant argues
that management was aware of his disability and accommodations. Complainant contends that
the Agency’s reasons for its actions are pretext for unlawful age and disability discrimination.
Accordingly, Complainant requests that the Commission reverse the FAD.

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ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his age or disability. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Even assuming that the alleged conduct was sufficiently
severe or pervasive to create a hostile work environment, the Commission finds that
Complainant failed to show that the Agency’s actions were based on discriminatory animus. For
example, with respect to claim (1), TSM denied telling Complainant to stay home because there
was no limited or light duty available. ROI, at 146. Rather, TSM stated that Complainant
submitted medical documentation indicating that he had restrictions and he advised Complainant
to submit a request for light duty. Id. Further, TSM affirmed that Complainant did not submit a
light duty request and, instead, provided updated medical documentation releasing him to full
duty without restrictions. Id. Regarding claim (2), TSM denied eavesdropping on Complainant
and asserted that he learned of Complainant’s conversation with another employee from a
Human Resources official who instructed him to ask Complainant to submit medical
documentation for FOHS review. Id. at 147. TSM confirmed that he provided Complainant a
medical release form and a JAT for his doctor to complete, but denied that he disallowed
Complainant from reading it. Id. TSM stressed that he asked Complainant to sign the medical
release form only to allow FOHS to contact his medical provider and review his medical
documentation based on the concern about his ability to perform the duties of his position. Id.3

As to claim (3), TSM stated that he contacted Complainant regarding the status of his medical
documentation because the deadline had passed or was nearing and he was following up with

3 The Commission notes that Complainant did not allege that any Agency official improperly
disclosed confidential medical information.
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Complainant to make sure he understood. ROI, at 149. TSM denied asking Complainant if his
wife could submit the paperwork to him. Id. HRS confirmed that she contacted Complainant on
several occasions between February 25, 2014 and March 4, 2014, to ascertain the status of his
medical documentation and to provide Complainant information about what was needed. Id. at
155.

Regarding claims (4), (5), and (6), TSM explained that Complainant’s doctor returned a
completed medical packet that was reviewed by the FOHS Doctor. ROI, at 149. Based on
Complainant’s medical documentation and conversations with Complainant’s doctor, the FOHS
Doctor determined that Complainant had an ejection fraction of 35 percent and a 30-pound
lifting restriction. Id. at 212. As a result, the FOHS Doctor concluded that Complainant was
medically disqualified from the STSO position based on the Agency’s Medical Guidelines for
Transportation Officers. Id. Those guidelines state that “an ejection fraction of less than or
equal to 45 percent is unacceptable.” Id. at 171. Additionally, the ability to lift up to 70 pounds
is one of the requirements of the STSO position. Id. at 175. Based on the FOHS Doctor’s
medical disqualification, TSM issued Complainant a Notice of Proposed Removal on April 2,
2014, for failure to meet the medical guidelines of his position. Id. at 149, 214. Complainant
responded to the notice, but the response did not challenge the determination that he did not meet
the requirements of the STSO position. Id. at 201-02. AFSD considered Complainant’s
response as well as the medical documentation submitted, and issued Complainant the Notice of
Removal Decision upholding the proposed removal. Id. at 223.4

The Commission concludes that Complainant has not shown that he was subjected to a
discriminatory hostile work environment. Moreover, to the extent Complainant claims that he
was subjected to disparate treatment, the Commission finds that, as discussed above,
Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for
discrimination. As a result, the Commission finds that Complainant was not subjected to
discrimination or a hostile work environment as alleged.

Denial of Reasonable Accommodation

Finally, to the extent that Complainant is alleging that he was denied reasonable accommodation,
the Commission notes that 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. The Commission will assume arguendo that Complainant is an individual with a
disability.

4 The record contains medical documentation from a third doctor dated April 10, 2014, indicating
that Complainant’s ejection fraction was now 45 percent and no physical restrictions. ROI, at
208-10. There is no evidence showing that Complainant ever provided this documentation to
Agency officials. Id. at 163-64.
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The record evidence reveals that Complainant’s submitted medical documentation at the time of
his removal indicated that he could not lift over 30 pounds and his ejection fraction was at 35
percent. ROI, at 212. Thus, Complainant’s physical restrictions were inconsistent with the
mandate of the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 40101 et seq.,
that anyone holding a TSO position must be able to lift 70 pounds. Id. at 171, 173-76.
Therefore, the Commission finds that Complainant did not meet the ATSA-mandated
qualification standards for his STSO position. See Houser v. Dep't of Homeland Sec., 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 record establishes
that the ability to lift 70 pounds is a standard derived from the ATSA, and as a result, is an
essential function of the TSO position. See Tucker v. Ridge, 322 F. Supp. 2d 738, 740-41 (E.D.
Tex. 2004) (“[a]n essential task basic to performing the critical work function of screening
baggage in the position of TSA security screener is the ability to handle, lift, and carry baggage
weighing up to 70 pounds).”

Because Complainant could not meet the ATSA-mandated standards for the STSO position, i.e.,
the ability to repeatedly carry and lift 70 pounds, the Commission finds that Complainant did not
establish that he could perform the essential functions of his STSO position. See Houser, EEOC
Appeal No. 0120110386; Getzlow v. Dep't of Homeland Sec., EEOC Appeal No. 0120053286
(Jun. 26, 2007) req. for recon. den., EEOC Request No. 0520070839 (Oct. 12, 2007); see also
Shimmin v. Dep't of Homeland Sec., EEOC Appeal No. 0120072428 (Jun. 4, 2009). Therefore,
the Commission finds that Complainant did not establish that he is qualified for the STSO
position or that the Agency violated the Rehabilitation Act when he was removed from his
position.

In addition, Complainant did not identify a vacant funded position into which he could have been
reassigned during this time, and there is no evidence of one in the record. Complainant has an
evidentiary burden to establish that it is more likely than not that there were vacancies during the
relevant time period into which he could have been reassigned. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01986308 (July 31, 2002). Accordingly, the Commission finds that the
Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation
Act.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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

February 14, 2018
Date