0120070904
07-24-2009
George O. Gehring, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
George O. Gehring,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120070904
Hearing No. 551-2006-00027X
Agency No. TSAF-05-0413
DECISION
On November 28, 2006, complainant filed an appeal from the agency's
October 20, 2006 final order 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate; (2) whether
complainant established that he was denied a reasonable accommodation;
and (3) whether complainant was subjected to disparate treatment and/or
a hostile work environment on the basis of disability.1
BACKGROUND
The record reflects that complainant began working for the agency in
March 2004 as a Transportation Security Screener at the Redmond Airport,
Roberts Field in Redmond, Oregon. Complainant's first line supervisor
was the Supervisory Transportation Security Screener (RMO1), his second
line supervisor was another Supervisory Transportation Security Screener
(RMO2), and his third line supervisor was the Deputy Federal Security
Director (RMO3).
When he was hired, complainant informed the agency that he suffered from
multi-joint arthritis. A physician who filled out his pre-employment
medical assessment diagnosed him with "osteoarthritis (mild)" with a
"good prognosis." Although complainant felt some discomfort in his knees,
he did not request or require a reasonable accommodation at that time.
In March 2005, complainant began to suffer increased pain in both knees
and had difficulty walking or standing for prolonged periods of time.
He began wearing knee braces on a regular basis, and he informed RMO3
of this development. Although complainant was allowed to wear the
braces while he worked, he was unable to walk through metal detectors
without setting off an alarm. As a result, he was continually subject
to secondary screening, i.e., being searched or "hand-wanded," at each
checkpoint.
In April 2005, complainant orally requested that management exempt him
from the secondary screening requirement. He subsequently submitted
a letter to RMO3 requesting a reasonable accommodation. In mid-April
2005, complainant, RMO2, RMO3, and the Administrative Officer held a
teleconference to discuss the accommodation request. Complainant raised
concerns he had with the frequency of the additional screenings he was
subjected to as well as the difficulty he had with the accessibility of
his knee brace.2 At the conclusion of the meeting, management indicated
that complainant would have to continue submitting to secondary screening.
The Administrative Officer, however, offered to provide complainant with
a modified uniform with a "zipper or Velcro device" installed in his
pants to allow for easier access to the knee brace during screening.
Shortly after the meeting, management reduced the number of checkpoint
rotations required of the screeners, which significantly reduced the
number of times employees had to be screened each day.
On or around April 29, 2005, complainant alleged that RMO1 informed him
that he would have to submit to a private screening because he was wearing
a knee brace.3 Complainant refused to submit to a private screening,
and he was ordered to go to the break room. RMO3 then told complainant
to "consider the consequences" of refusing to submit to the screening.
Complainant was eventually screened in public at the checkpoint.
On June 7, 2005, complainant filed an EEO complaint alleging that he
was discriminated against and subjected to a hostile work environment
on the basis of disability (multi-joint arthritis) when:
(1) He was routinely required to be searched and hand-wanded when entering
an airport checkpoint. This occurred several times throughout the work
day, despite management's knowledge of (and medical documentation to
support) his need to wear knee braces;
(2) He was required on one occasion to go through a private screening,
and, upon refusing to go through private screening, he was told to
consider the consequences; and
(3) He believed that the additional wanding and pat-downs were
humiliating, degrading and a waste of time and do not provide additional
security. Complainant feared that because of this additional screening
he could never become a lead screener and thus could not advance within
the agency.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On September 8, 2006, the AJ assigned to the case
issued a decision without a hearing finding that complainant failed
to establish that he was an individual with a disability, that he was
subjected to an adverse action, or that he was subjected to a hostile
work environment. The AJ's decision further found that complainant
failed to establish that he was denied a reasonable accommodation.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing because the agency discriminated against him and
subjected him to a hostile work environment. He further argues that
he is an individual with a disability and provides additional medical
documentation for the Commission to consider. The agency did not provide
a response to complainant's appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause undue hardship. 29 C.F.R. � 1630.9. In order
to establish that complainant was denied a reasonable accommodation,
complainant must show that: (1) he is an individual with a disability,
as defined by 29 C.F.R. � 1630.2(g); (2) he 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, EEOC No. 915.002 (October 17, 2002) (Guidance).
Upon review, assuming complainant is a qualified individual with a
disability within the meaning of the Rehabilitation Act, we concur with
the AJ's determination that the agency provided complainant with an
effective accommodation. The record reflects that agency management
implemented a new rotation system that significantly reduced the
number of times complainant was subjected to secondary screening
shortly after he had requested an accommodation. Additionally, the
Administrative Officer offered to provide him with a modified uniform
to make his knee brace more accessible during the screening process.
We note that complainant's affidavit states that he no longer had to
submit to secondary screening multiple times a day after the rotation
schedule was changed, and he never responded to the agency's offer to
modify his uniform. We further note that, although protected individuals
are entitled to reasonable accommodation under the Rehabilitation Act,
they are not necessarily entitled to their accommodation of choice.
See Guidance at Question 9. Therefore, we find that the agency met its
obligations under the Rehabilitation Act.
Disparate Treatment
Complainant alleged that he was discriminated against based on
his disability when he was required to undergo secondary screening
and denied opportunities for future advancement within the agency.
To prevail in 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 he 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case of disability discrimination under a
disparate treatment theory, the complainant must demonstrate that: (1) he
is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g);
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination.
Carney v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01986113
(August 3, 2000) (citing Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981)).
Upon review, we find that complainant failed to establish a prima facie
case of disability discrimination with respect to his claim that he was
denied opportunities for future advancement because he failed to establish
that he was subjected to an adverse personnel action. The record reflects
that complainant did not apply for any vacant positions or promotions
during the relevant time period, and there is insufficient evidence
in the record that complainant's opportunities were somehow limited
by the requirement that he submit to secondary screening. Moreover,
complainant's mere speculation is insufficient to create an inference
of disability discrimination.
Regarding his objection to the secondary screening, assuming arguendo
that complainant established a prima facie case of discrimination,
we find that he failed to establish that the agency's legitimate,
nondiscriminatory reasons for its actions were a pretext for unlawful
discrimination. We note that several agency officials stated in the
record that all Transportation Security Screeners were required to walk
through checkpoint metal detectors, and secondary screening was required
if an alarm was triggered. Moreover, RMO1 stated in his affidavit that
allowing screeners to bypass the screening process after an alarm was
triggered would constitute a breach of security.
Hostile Work Environment
Complainant alleged that he was subjected to a hostile work environment
based on his disability when he was forced to submit to "humiliating,
degrading" secondary screening. He also alleged that he was harassed
when, on April 29, 2005, he was ordered to submit to private screening
and RMO3 stated that complainant should "consider the consequences"
of refusing to submit to secondary screening.
Harassment is actionable only if the incidents to which complainant
has been subjected were "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);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). To establish a prima facie case of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
We find that complainant failed to provide sufficient evidence in the
record to show that the cumulative incidents he cites are sufficiently
severe or pervasive to create a hostile work environment. We also
find no persuasive evidence that the alleged harassment was motivated by
unlawful animus towards complainant's disability. With respect to the
April 29, 2005 incident, RMO1 and RMO3 stated in the record that this was
the first day complainant had reported to work after the teleconference
meeting. RMO1 indicated that he was "wanding" complainant that day,
and he may have suggested that complainant undergo private screening.
Complainant refused to submit to a private screening at the checkpoint
because he felt that RMO1 had not followed proper procedures. RMO3 stated
that he advised complainant to consider the consequences of refusing to
follow the instructions of a superior when he learned that complainant had
refused to submit to the additional screening. Complainant was eventually
screened at the checkpoint, and no discipline was issued. In viewing the
events as a whole, complainant has not established that the incidents
in question had the purpose or effect of unreasonably interfering with
his work performance and/or creating a hostile work environment.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
__07/24/09________________
Date
1 For purposes of this decision, we assume without finding that
complainant is a qualified individual with a disability within the
meaning of the Rehabilitation Act.
2 The Administrative Officer stated in the record that "[d]ue to the
type and style of knee braces [complainant] wears, it is necessary to
swab the braces for explosives. [Complainant] mentioned difficulty in
pulling up his pant leg to permit access to the braces."
3 Individuals who trigger the metal detector alarm have the option of
submitting to secondary screening at the checkpoint, in full view of
the public, or a private screening.
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0120070904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070904