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

Equal Employment Opportunity Commission

Nov 29, 2018

0120171512 (E.E.O.C. Nov. 29, 2018)

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

Madeleine C.,1
Complainant,

v.

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

Appeal No. 0120171512

Agency No. HS-TSA-25149-2016

DECISION

Complainant timely 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 final decision concerning
her 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

ISSUES PRESENTED

The issues presented are: 1) whether the Agency violated the Rehabilitation Act when it requested
medical documentation from Complainant and required her to submit to a Fitness-for-Duty
Medical Questionnaire; and 2) whether the Agency subjected Complainant to hostile work
environment harassment, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Behavior Detention
Officer (BDO) at the Chicago O’Hare International Airport in Chicago, Illinois. Report of
Investigation (ROI) at 60. The Supervisory BDO served as Complainant’s first-level supervisor

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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(S1) and the Behavior Detection Manager (BDM) worked as Complainant’s second-level
supervisor (S2). Complainant was also supervised by the Canine Decoy Coordinator (CDC) who
also worked as the Behavior Detection Administrative Coordinator.

According to Complainant, she had been diagnosed with Type 1 Diabetes, which made it difficult
for her to stand or sit for extended periods. Id. at 86-87. Complainant stated that her diabetes also
required her to eat small meals frequently to regulate her blood sugar levels. Id. Complainant
averred that she also had to undergo knee surgery due to complications from her diabetes. Id.

On September 20, 2015, Complainant returned to work after having knee surgery and
hand-delivered light duty documentation to the CDC. Id. at 87. Therein, Complainant informed
the CDC that, according to her doctor’s instructions, she was only allowed to sit for four hours and
stand for four hours at a time during her shift. Id. Accordingly, Complainant requested that the
CDC place her on a part-time BDO light duty assignment, which would allow her to stand for four
hours of her shift and sit for the remaining four hours of her shift. Id. The CDC however informed
Complainant that the BDO position did not offer part-time light duty assignments, and instead
offered Complainant a light duty assignment at another position. Specifically, from October 10,
2015, through December 2, 2015, Complainant was assigned to work at the Exit Lane which,
according to her, required sitting for eight consecutive hours in violation of her restrictions. Id. at
88. However, S2 denied that Complainant was required to sit for eight consecutive hours at the
Exit Lane, and averred that Complainant was assigned to a few non-screening functions at the
checkpoint that permitted Complainant to sit only if she chose to do so. Id. at 110. S2 stated that it
was common knowledge that officers have the option to sit or stand while on duty at the Exit Lane.
Id.

On November 19, 2015, according to Complainant, when she began to drink a grape soda while
on duty, the CDC approached her and yelled at her, saying she was not allowed to have a beverage
at the work location. Id. at 88-89. However, Complainant responded to the CDC that she needed
to drink the beverage because her blood sugar was dangerously low due to her diabetes.
Complainant further reportedly responded to the CDC that she had already provided medical
documentation and her supervisor said that she could drink the soda. Id. The CDC denied yelling
at Complainant and attested that he simply told Complainant to coordinate with the checkpoint if
she needed a short break to drink the soda because she was not allowed to have food or drink in
the work area. Id. at 104-105. The next day, on November 20, 2015, S1 issued a memorandum to
Complainant, requesting medical documentation regarding the extent she needed to regulate her
blood sugar while on duty. Id. at 133. Thereafter, on December 4, 2015, Complainant submitted a
written request for reasonable accommodation to management with attached medical
documentation from her doctor. Id. at 135-137. Therein, Complainant’s doctor wrote that
Complainant needed to carry food and drink with her as she is prone to fluctuations in her blood
sugar levels due to her diabetes. Id.

On January 6, 2016, the Human Resources (HR) Specialist presented Complainant with a Fitness-
for-Duty Medical Questionnaire with questions about her condition for her medical provider to
answer. Id. at 154. On January 22, 2016, Complainant’s doctor filled out the Questionnaire,
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answering that Complainant had no restrictions which would impact her ability to perform her
duties. Id. at 159-161. On February 9, 2016, the Agency found that Complainant was medically
qualified for her position in accordance with the Medical and Psychological Guidelines for
Transportation Security Administration Transportation Security Officer Job Series (TSO Medical
Guidelines). Id. at 166-167.

On February 26, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability when:

1. On or around October 10, 2015, management denied her light duty request;

2. From approximately October 10, 2015, to December 2, 2015, management assigned
her to work in a sitting position for 8 consecutive hours, contrary to her light duty
instructions;

3. On November 19, 2015, the CDC yelled at her in front of passengers for having a soda
drink at the exit lane;

4. On November 20, 2015, management issued her a letter informing her she had one
week to provide medical documentation regarding her diabetes;

5. On or around December 1, 2015, a manager told her she would be required to travel to
attend a training course that was also offered locally; and

6. On January 6, 2016, she received a Notice of Proposed Removal.2

Following 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 specifically found that Complainant did not establish that she was denied a reasonable
accommodation her disability as alleged. In so finding, the Agency noted that it provided
Complainant with an assignment in accordance with her restrictions as she requested, and allowed
Complainant the ability to have snacks and beverages while on duty. The Agency also noted that
it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not
show were pretextual. The Agency observed that the EEO Investigator afforded Complainant with

2 Complainant was never issued a Notice of Proposed Removal, but was instead issued a
memorandum requesting that she respond to a Fitness-for-Duty Medical Questionnaire. The
memorandum noted that Complainant could face removal if she did not submit to the
Questionnaire. As such, we will address this claim as whether Complainant was subjected to
discrimination when she was issued the Fitness-for-Duty Medical Questionnaire.
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multiple opportunities to respond to the Agency’s articulated reasons, but Complainant did not do
so. The Agency also found that its requests for medical documentation from Complainant
concerning her condition were job-related and consistent with business necessity. The Agency
lastly found that Complainant did not show that she was subjected to a hostile work environment
as she alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts, in pertinent part, that management has subjected her to several
actions of retaliation for her EEO activity. Complainant states that she has been subjected to several
schedule changes during her light duty and there have been inappropriate comments made about
her in front of her coworkers.3 She further maintains that on November 19, 2015, she was having
a dangerous Hypoglycemic attack, but the CDC denied her the right to drink the soda to raise her
blood sugar. Complainant states that she was forced to apply for a reasonable accommodation in
order to keep any food or drink with her. But states that she decided to withdraw her request for
accommodation after being informed that she would be subjected to a Fitness-for-Duty evaluation,
which could have resulted in her removal from the Agency. Complainant states that on October
23, 2015, she reported to the Checkpoint 5 Lead Officer to begin manning the Exit Lane.
Complainant states that the Lead Officer granted her request to carry juice and a blood sugar meter
in a bag with her at all times. According to Complainant, on November 19, 2015, while she was
on duty, her blood sugar meter showed that her blood sugar was extremely low, and she started to
show signs of Hypoglycemia. Complainant states that she immediately went for the soda in her
bag, but the CDC questioned her in loud manner about her diabetes and said she could not have
the drink while on duty. Complainant maintains that the CDC then told her in a harsh tone that she
needed to take a break to ask for a substitute to have the drink, and that she needed to provide the
Agency with medical documentation. Complainant asserts that she then proceeded to the
breakroom to drink the soda. Complainant felt that the CDC publicly shamed and humiliated her
over her need to have a beverage while working to manage her blood sugar. Complainant maintains
that she was then asked to report to the BDO office for a meeting where management asked that
she provide medical documentation about her condition. Complainant states that during the
meeting she showed management her insulin pump, as she felt management was improperly asking

3 We note that for first time on appeal Complainant contends that she has been subjected to several
acts of retaliation. These matters were not the subject of Complainant’s formal complaint.
Complainant is advised that if she wishes to pursue, through the EEO process, these additional
claims raised for the first time on appeal, she must initiate contact with an EEO Counselor within
15 days after she receives this decision. The Commission advises the Agency that if Complainant
seeks EEO counseling regarding these new claims within the above 15-day period, the date
Complainant filed the appeal statement in which she raised these claims with the Agency shall be
deemed to be the date of the initial EEO contact, unless she previously contacted a counselor
regarding these matters, in which case the earlier date would serve as the EEO Counselor contact
date. Cf. Qatsha v. Dep't of the Navy, EEOC Request No. 05970201 (Jan. 16, 1998).

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her for medical documentation. Complainant believes that management threatened her job in
asking for the medical documentation about her condition.4

In response, the Agency argues, inter alia, that Officers on duty at the Exit Lane are generally not
allowed to consume beverages and the CDC therefore reasonably informed Complainant that
beverages were not permitted. The Agency states that when Complainant responded that she
needed the beverage due to her diabetes, the CDC notified her that she would have to apply for a
reasonable accommodation, and if granted, she could have beverages at the Exit Lane. The Agency
further states that it was the Chief Medical Officer who made the decision to have Complainant
submit to the Fitness-for-Duty Questionnaire.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Fitness-for-Duty Questionnaire and Request for Medical Documentation (Claims 4 and 6)

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

4 We note that Complainant does not specifically address the Agency’s findings with regard to
claims 1, 2, and 5 on appeal. We therefore decline to address these claims herein, as the
Commission has the discretion to review only those issues specifically raised in an appeal. EEOC
Management Directive for 29 C.F.R. Part 1614, Chap. 9, at § IV.A (Aug. 5, 2015) (“Although the
Commission has the right to review all of the issues in a complaint on appeal, it also has the
discretion not to do so and may focus only on the issues specifically raised on appeal.”).

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his or her job or pose a direct threat because of a medical condition. Enforcement Guidance on
Disability-Related Inquiries, 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. Dep't
of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).

Moreover, when a disability and/or the need for accommodation is not obvious, the employer may
ask the individual for reasonable documentation about her disability and functional limitations.
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, Notice No. 915.002 (revised October 17, 2002), at Question 6.

In the instant case, there is no dispute Complainant was having trouble with the levels of her blood
sugar while on duty, and that she showed signs of Hypoglycemia on duty as well. As an
accommodation, Complainant requested to carry a bag with her at all times containing juice and
snacks. However, according to the CDC, the consumption of food and beverages was generally
only permitted in the breakroom and not allowed while on duty. In addition, we note that the
Agency’s TSO Medical Guidelines specifically lists diabetes as a medical condition that could
affect safe and effective job performance. As such, we find that the Agency had a reasonable belief
that Complainant was unable to perform the essential functions of her job. Based on the record,
we find that the request for Complainant to submit to the Fitness-for-Duty Questionnaire was not
a violation of the Rehabilitation Act because the Agency adequately established that it was job-
related and consistent with business necessity. Notwithstanding, there is no dispute that the Agency
ultimately found Complainant medically qualified for her position. Moreover, we can find no
evidence that the Agency denied Complainant’s request for accommodation that she be allowed to
consume beverages while on duty thereafter. In sum, we find that Complainant has not established
that the Fitness-for-Duty Questionnaire and the request for medical documentation violated the
Rehabilitation Act.

Hostile Work Environment (Claims 3, 4, and 6)

To the extent that Complainant alleges that the Agency’s conduct constituted discriminatory
harassment, the Commission notes that harassment of an employee based on the employee’s race,
color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is
sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that
a working environment is hostile, factors to consider are the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: “Conduct
that is not severe or pervasive enough to create an objectively hostile work environment - an
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environment that a reasonable person would find hostile or abusive - is beyond Title VII’s
purview.” Harris, 510 U.S. at 22 (1993).

In this case, Complainant asserts that she was subjected to a hostile work environment when the
CDC loudly confronted her in front of passengers while she attempted to drink her soda while on
duty. Complainant states that she was told to go the break room to drink the soda and that she
needed to provide medical documentation through the reasonable accommodation process.
Complainant also states, among other things, that she was made to go to the BDO office where she
was confronted about her condition.

While Complainant’s work environment may not have been ideal, we find that she has failed to
establish that she was subjected to a hostile work environment based on disability as alleged. Even
assuming the incidents occurred as alleged, we find they are not sufficiently severe or pervasive
to rise to the level of a hostile work environment. The Commission notes that Title VII is not a
civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions
of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
The record reflects that the Agency’s actions here were not so abusive so as to rise to the level of
a hostile work environment.

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
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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

November 29, 2018
Date