Floyd L.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionFeb 14, 20180120160268 (E.E.O.C. Feb. 14, 2018) Copy Citation 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. 0120160268 2 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. 0120160268 3 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 0120160268 4 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. 0120160268 5 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. 0120160268 6 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. 0120160268 7 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. 0120160268 8 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. 0120160268 9 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 Copy with citationCopy as parenthetical citation