EEOC Petition No. 0420160007
11-02-2017
Levi P. v.Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Levi P.,1
Petitioner,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0420160007
Request No. 0520130413
Agency No. HS-08TSA-003437
DECISION ON A PETITION FOR ENFORCEMENT
On November 6, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of the Order set forth in EEOC Request No. 0520130413 (September 26, 2013). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. � 1614.503. For the following reasons, this petition is GRANTED.
During the period at issue, Petitioner received a conditional job offer as a Transportation Security Officer (Screener) at the Agency's Grand Forks Mark Andrew International Airport located in Grand Forks, North Dakota. Petitioner filed a complaint in which he alleged discrimination based on disability (depression) in violation of the Rehabilitation Act. The Agency accepted the complaint for investigation. Although Petitioner initially requested a hearing before an EEOC Administrative Judge, he subsequently withdrew that request in favor of a final agency decision. The Agency issued a final decision that found Petitioner failed to prove discrimination as alleged. Petitioner thereafter appealed the Agency's final decision to the Commission.
On appeal, the Commission reversed the final decision and found discrimination. Specifically, the Commission found that the Agency violated the Rehabilitation Act by requiring Petitioner, who had received a conditional offer of employment, to take a follow-up medical examination at his own expense, after the Agency had already paid for an initial medical examination administered to all individuals who were given conditional job offers for the same position. See EEOC Appeal No. 0120091544 (Mar. 3, 2013).
In so finding, the Commission ordered the Agency, among other things, to revise its post-offer procedures for medically assessing job applicants. The Agency requested reconsideration of the Commission's decision, which the Commission denied upon finding that the request did not meet the criteria for reconsideration. See EEOC Request No. 0520130419 (Sep. 26, 2013). In its denial, the Commission mandated the Agency to comply with the order issued in EEOC Appeal No. 0120091544. Id.
Among other things, the Agency was ordered to:
[R]evise its post-offer procedures for medically assessing job applicants. Specifically, the Agency's procedures shall indicate that if the Agency requires an applicant at the post offer stage to undergo a specific follow-up medical examination, the Agency must pay all costs associated with the visit.
On January 22, 2016, the matter was assigned to a Compliance Officer and docketed as Compliance No. 0620140022.2 The Compliance Officer determined that the Agency was not in compliance with that part of the Commission's order requiring the Agency to revise its post-offer procedures for medically assessing job applicants, specifically, the above provision.
In response to the Compliance Officer's determination, the Agency contends it is in full compliance with the Commission's decision because the Agency "no longer requires [that] medical information or examination be provided by the applicant at his/her own expense." See Agency's March 28, 2016 Motion for an Extension of Time and Response to the Petition for Enforcement, at 3. The Agency explained that it now makes its medical suitability determinations based on its own medical review by a contractor. Id. The Agency further contends that if there is not enough information available to make a medical determination on an applicant based on the contractor's review, the application is placed on hold. Id.
Pursuant to its new policy, the Agency contends that no further medical documentation is required by the contractor once the application is placed on hold; however, the applicant is provided with the opportunity to voluntarily submit additional information to challenge the Agency's determination. According to the Agency, the submission of additional medical information is at the discretion of the applicant and, as such, it is at his/her own expense. Id. The Agency, in relevant part, maintained that its decision-making process is concluded once an initial determination is made as to whether an applicant is medically qualified for the position or if the matter is placed on hold. Id. As evidence of its policy change, the Agency provided a declaration from the Acting Chief Medical Officer. See March 25, 2016 Declaration of Acting Chief Medical Officer.
As noted above, the Agency was directed to revise its post-offer procedures to indicate that if it required an applicant at the post-offer stage to undergo a specific follow-up medical examination, the Agency would pay all costs associated with the follow-up examination. Upon review, we find the Agency has not complied with the clear and plain language set forth in the Commission's Order.
The Commission clearly directed the Agency to pay for any follow-up medical examinations that it deems necessary at the post-offer stage. The Agency has attempted to circumvent the Commission's Order, however, by maintaining that its new policy is not to require additional medical information but merely giving applicants the opportunity to submit additional medical information at the discretion of the applicant and at his/her own expense that will challenge a determination to put a matter on hold. Although the Agency characterizes this is the applicant's choice, we do not find it to be a choice at all. If the applicant wants the position, and the Agency has placed the matter on hold, the applicant has no choice but to pay for additional testing or they will lose the job. The Agency, as in the past, gets the additional testing performed without having to pay for said testing.
As previously stated, if the Agency requires an applicant at the post offer stage to undergo a specific follow-up medical examination, the Agency must pay all costs associated with the visit. Accordingly, the Commission GRANTS the petition for review and finds that the Agency has not complied with our previous Order in this matter. The Agency is ORDERED to comply with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final:
The Agency shall revise its post-offer procedures for medically assessing job applicants. Specifically, the Agency's procedures shall indicate that if the Agency requires an applicant at the post offer stage to undergo a specific follow-up medical examination, the Agency must pay all costs associated with the visit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
___11/2/17_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The matter was prematurely assigned to a Compliance Officer and docketed as Compliance No. 0620130430, on March 19, 2013.
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