U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna B.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000571 Hearing No. 530-2018-00074X Agency No. HS-TSA-00812-2017 DECISION On October 29, 2019, Complainant 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 October 4, 2019 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Transportation Security Officer (TSO), SV-1802-E, at the Baltimore- Washington International Airport in Baltimore, Maryland. On April 10, 2017, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (Caucasian), age (56), and reprisal (prior protected EEO activity) when: 1. On August 19, 2016, the Human Resources Specialist (HRS) removed Complainant from the bidding roster; and 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. 2020000571 2 2. Since August 2016, the HRS failed to assist Complainant in finding a reasonable accommodation or otherwise keeping her on the roster after she had sustained an on- the-job injury in November 2013. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 1, 2019, motion for summary judgment and issued a decision without a hearing on August 28, 2019 finding that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. Incident (1): Complainant claimed that on August 19, 2016, the HRS presented her with a letter indicating that she would be placed in leave without pay (LWOP) status and removed from the bidding roster. She further averred that a pair of younger African-American TSOs who were under medical restrictions were not removed from their positions but were instead relocated to the Agency’s intelligence office. IR 64-65. HRS denied that Complainant was removed from the bidding roster. He stated that Complainant had been in limited duty status since she sustained an on-the-job injury on November 24, 2013, and that such placement was considered a temporary accommodation. He also stated that on the basis of medical documents provided by Complainant and her health care provider, he had determined that Complainant had permanent work restrictions and that she had reached her maximum medical improvement. He explained that on August 19, 2016, he referred Complainant to the Department of Labor’s Vocational Rehabilitation Program, and that under that program, she would receive the same paycheck and health care coverage for up to one year. He pointed out that being in the Vocational Rehabilitation Program meant that Complainant could not be assigned a normal work schedule due to her inability to perform the essential duties of her job. Finally, he averred that the two African-American TSOs did not have medical restrictions due to on-the-job injuries and that he was not involved in their reassignments. IR 71-72, 74-76, 85-96, 99, 103-04, 109, 20-27, 129, 131, 133, 165-68, 170-73. Incident (2): Complainant alleged that HRS did not inform her that she was entitled to submit a reasonable accommodation request in August 2016. When asked by the EEO Investigator what her reasonable accommodation request was, Complainant replied that she requested to maintain her employment in a position for which she was medically qualified. IR 65. HRS responded that under the pertinent management directive, he had fulfilled his obligation to refer Complainant to the Vocational Rehabilitation Program on August 19, 2016. He also averred that during an EEO mediation that took place on March 28, 2017, Complainant had asked him if she could submit a reasonable accommodation request for a position for which she was medically qualified, and that he told her that she was already under consideration for such a position by virtue of being in the Vocational Rehabilitation Program. In addition, he stated that he provided Complainant with an application for a reasonable accommodation request together with the instructions on how to submit her request. Complainant submitted the request. 2020000571 3 The record reveals that management conducted two searches (one in August 2017 and a Department of Homeland Security-wide search in September 2017) for a vacant, funded position into which she could be reassigned, but none were available within her restrictions and for which she was qualified. The Agency subsequently issued Complainant a non-disciplinary removal notice which was sustained by the Agency’s Office of Professional Responsibility Appellate Board. IR 72, 135-37, 139, 163; Agency’s Motion for Summary Judgment, Ex. 3, Ex. 4, Ex. 7. ANALYSIS AND FINDINGS Standard of Review 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. Denial of Reasonable Accommodation To the extent that Complainant is alleging that the Agency denied her reasonable accommodation, the Commission notes that agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002). Although Complainant characterized the residual effects of the on-the-job injury that she had sustained in November 2013 as a disability, she only identified her age, race, and previous EEO activity as bases of discrimination in the complaint. Even if such a claim were raised, the record establishes that HRS provided Complainant with the instructions necessary to file a reasonable accommodation request and that she filed such a request. The Agency undertook two Agency- wide searches, but found no vacant, funded position within Complainant’s restrictions into which she could be reassigned. Complainant had been in a LWOP status for more than a year and was subsequently issued a non-disciplinary removal based on her unavailability for duty and no suitable reassignment position. 2020000571 4 We therefore find that Complainant has not submitted any documentary or testimonial evidence that raises a genuine issue of material fact as to whether the Agency denied her reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since HRS already articulated a legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (1), HRS stated that he had referred Complainant to the Vocational Rehabilitation Program after receiving medical information documenting that she was under permanent restrictions which prevented her from performing the essential duties of her position as a TSO. As to incident (2), HRS stated that he had given Complainant the information she needed to complete a reasonable accommodation request and that she had done so. As discussed above, management undertook two searches to identify a vacant, funded position within Complainant’s restrictions into which she could be reassigned but was unable to locate one. To move forward with a hearing, Complainant must raise a genuine issue of material fact as to whether the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked why she believed that the actions taken by S1 were motivated by unlawful considerations of her age, race, and previous EEO activity, Complainant asserted that HRS removed Complainant from the bidding roster because he knew that she had a history of complaining about unequal treatment. IR 65. However, the record establishes that Complainant was placed in the Vocational Rehabilitation Program and not removed from the bidding roster and that HRS was not involved in the reassignments of the two African-American TSOs to the intelligence office. Beyond these assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict or undercut the explanations provided by HRS, or which calls into question HRS’s veracity as a witness. We therefore agree with the AJ that the evidentiary record in this case is insufficient to raise a genuine issue of material fact as the existence of a discriminatory or retaliatory motivation on the part of the Agency in connection with the incidents comprising the discrimination claim now before us. 2020000571 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000571 6 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 January 11, 2021 Date
