Michael D. Kimble, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionNov 24, 2009
0120072195 (E.E.O.C. Nov. 24, 2009)

0120072195

11-24-2009

Michael D. Kimble, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.


Michael D. Kimble,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

(Transportation Security Administration),

Agency.

Appeal No. 0120072195

Agency No. HS06TSA001927

DECISION

Upon review, the Commission finds that the agency's decision dated

February 22, 2007, dismissing complainant's complaint for failure to

state a claim is improper pursuant to 29 C.F.R. � 1614.107(a)(1). In his

complaint dated September 5, 2006, complainant, a Lead Transportation

Security Officer with the Louis Armstrong International Airport located

in New Orleans, Louisiana, alleged discrimination based on disability

(back and right leg injury) when: (1) on April 6, 2006, his request

for reasonable accommodation was denied; (2) on April 13, 2006, he was

placed on administrative leave from his position as a Lead Transportation

Security Officer; and (3) on June 1, 2006, he was terminated from his

position as a Lead Transportation Security Officer.

In its decision, the agency dismissed the complaint on the grounds of

failure to state a claim. The agency determined that complainant's claim

of disability discrimination under the Rehabilitation Act was preempted

by the Aviation and Transportation Security Act (ATSA).

The Commission finds that it has jurisdiction over the complaint at

issue. The ATSA does not divest the Commission of jurisdiction over

complaints brought by security screeners against the agency under

the Rehabilitation Act or other statutes the Commission enforces.

While Congress gave the agency broad authority to establish terms and

conditions of employment for security screeners, that authority does not

include complete exemption from � 501 of the Rehabilitation Act and the

other employment discrimination laws. Chapman v. Department of Homeland

Security, EEOC Appeal No. 0120051049 (August 6, 2008), request for

reconsideration denied, EEOC Request No. 0520080805 (December 11, 2008);

Adams v. Department of Homeland Security, EEOC Appeal No. 0120054463

(August 31, 2007); Getzlow v. Department of Homeland Security, EEOC

Appeal No. 0120053286 (June 26, 2007), request for reconsideration

denied, EEOC Request No. 0520070839 (October 12, 2007). Accordingly,

the Commission has authority to hear complaints under the Rehabilitation

Act involving security screener positions. Id.

In Getzlow, the Commission found that the complainant must show that

he meets the ATSA-mandated standards in order to be qualified under

the Rehabilitation Act. Getzlow, EEOC Appeal No. 0120053286. Not all

ATSA-mandated standards will conflict with the Rehabilitation Act. Id.

However, if a conflict exists between the two standards, the disputed

standard will supersede any Rehabilitation Act requirements to the

contrary. Id. In the instant matter, complainant is not challenging

an ATSA-mandated qualification standard. Rather, he was alleging that

he was discriminatorily denied reasonable accommodation, placed in

administrative leave, and was terminated from his position.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED. The complaint is hereby REMANDED to the agency for

further processing in accordance with this decision and the ORDER below

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. �1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. 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.

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 (R0408)

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 (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

11/24/09

__________________

Date

2

0120072195

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013