U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001366 Hearing No. 460-2019-00145X Agency No. HS-TSA-02136-2018 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 1, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Supervisory Transportation Security Officer (STSO) at the George Bush Intercontinental Airport in Houston, Texas. On August 28, 2018, he filed an EEO complaint alleging that he was discriminated against and subjected to harassment based on disability (back) and reprisal (current EEO activity) when: 1. From June 5, 2018, to July 2, 2018, Human Resources did not respond to his requests for information; 2. On July 2, 2018, management issued him a proposed removal; 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. 2021001366 2 3. On August 15, 2018, management removed him from employment.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant initially requested a hearing but later withdrew that request and asked for a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency subsequently issued a decision concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. The record indicates that, on or about September 2017, Complainant reinjured his back and applied for Workers’ Compensation benefits, which were denied. On November 2, 2017, he submitted paperwork under the Family Medical Leave Act, and was granted intermittent leave. Beginning November 9, 2017, he was placed on Leave Without Pay (LWOP). On November 15, 2017, A1, the Deputy Federal Security Director, notified Complainant that due to his physical restrictions, the use of the prescription drugs Tramadol (an opioid) and Soma, and the expected time frame that he would be using the drugs, the Agency was unable to provide a light duty assignment to him. On December 28, 2017, Complainant’s physician, Doctor-1, diagnosed him with lumbar degenerative disc disease, spondyloarthritis,3 and anterolisthesis4. Doctor-1 ordered physical restrictions for 30 days, to include no lifting more than 15 pounds, and the use of Tramadol and Soma for pain. Doctor-1 completed a questionnaire indicating that Complainant was not able to squat, bend, stoop, and inspect bags. He could do no climbing, kneeling, sitting in low chairs, and was restricted to one hour of standing. Doctor-1 also stated that she would re-evaluate Complainant in thirty days to determine whether he could return to work without restrictions. Complainant remained off duty exhausting the remainder of his annual and sick leave from October 15, 2017 through October 28, 2017, and then remained in a LWOP status from October 29, 2017, through August 18, 2018. On January 18, 2018, HRS1, a Human Resource Specialist, requested a fitness-for-duty examination based on Complainant’s inability to return to work and to determine the nature and extent of his medical condition. On January 29, 2018, based on a review of the medical information provided, Doctor-2, the Agency’s Chief Medical Officer, determined that Complainant was, temporarily, medically disqualified from full and unrestricted STSO duties based on the Agency’s Medical and Psychological Guidelines for Transportation Security Officers.5 2 Complainant’s reprisal claim only applies to claim 3. 3 Spondyloarthritis is a group of inflammatory diseases that cause arthritis. 4 Anterolisthesis is a spine condition in which the upper vertebral body slips forward onto the vertebra below. 5 The physical requirements for the position include the ability to lift and carry items weighing up to 50 pounds without assistance; maintaining the physical agility to squat, bend, and lean to 2021001366 3 S1, a Transportation Security Manager (TSM), notified Complainant about his temporary medical disqualification and requested that he provide updated medical information. On March 19, 2018, Complainant provided the requested information. Doctor-1 confirmed her previous diagnoses and continued Complainant’s restrictions for the next 30 days, i.e., no lifting more than 15 pounds, standing one hour, and manipulating small objects with both hands. Complainant was still prohibited from squatting, bending, or stooping. Doctor-1 also stated that he could not climb, kneel, or sit low in chairs. Doctor-1 also noted that Complainant continued to take Tramadol and Soma at night as needed. In a Return to Work Questionnaire, Doctor-1 indicated that it was “unknown” when Complainant could return to work and safely perform his STSO job functions, but that she would reassess him at the next follow-up in 30 days. Doctor-2, in response to reconsideration requests issued on February 16, 2018, April 16, 2018, and May 17, 2018, found that Complainant was, temporarily, medically disqualified from full and unrestricted STSO duties. Doctor-2 further noted that Complainant was taking “sedating and opioid medications and [that] his conditions interfere with the performance of essential job functions such as lift and carry passenger checkpoint baggage weighing up to 50 pounds without assistance, and squat[ing], bend[ing] and stoop[ing] to conduct pat-downs.” He also noted that in response to a request to provide a date when Complainant could return to work and safely perform all the essential functions of the job without restrictions, Doctor-2 wrote “unknown will re-assess in 30 days.” In a Return to Work Form dated June 5, 2018, Doctor-3, a neurosurgeon to whom Doctor-1 referred Complainant, stated that Complainant was able to work part-time with no twisting, and restricted lifting to 15 pounds after June 24, 2018. On June 12, 2018, Doctor-1 also provided an updated report on Complainant’s prognosis. She reported that Complainant’s continued restrictions were no lifting more than 15 pounds, standing for one hour, no squatting, bending or stooping. He was able to manipulate small objects with both hands and was able to focus and maintain awareness while using Tramadol, Soma, and Lyrica (a Pregabalin).6 According to Complainant, on June 5, 2018, he sent HRS1 an email stating that he was cleared to return to work on June 24, 2018, in accordance with Doctor-3’s instructions. Complainant maintained, however, that he never received a response to his email, or to his subsequent follow up requests for information. HRS1 stated that she did respond to Complainant on June 5, indicating that she would forward his medical information to Doctor-2 for a fitness of duty determination. inspect individuals and baggage/cargo; efficiently and thoroughly manipulate and lift baggage, containers and other objects subject to security processing; maintain the ability to walk up to three miles during a shift and stand for prolonged periods (up to 4 hours) of time. 6 A Pregabalin is an anti-epileptic drug, also called an anticonvulsant. It works by slowing down impulses in the brain that cause seizures. Pregabalin also affects chemicals in the brain that send pain signals across the nervous system. 2021001366 4 HRS1 stated that she told Complainant that even though his doctor may have cleared him for duty, this did not mean that he met all the Agency’s medical qualifications for duty. HRS1 stated that she also forwarded everything to Doctor-2 on June 5, 2018. HRS1 maintained that she was out of the office, due to illness, when Complainant contacted the office a second time, but that she did respond to his third request for information by arranging for him to pick up Doctor-2’s fitness for duty determination in person. On June 14, 2018, Doctor-2 determined that Complainant was medically disqualified from full and unrestricted STSO duties. Doctor-2 again indicated that Complainant could not perform the essential job functions of the STSO position as set forth in the Agency’s Medical and Psychological Guidelines for Transportation Security Officers. He noted that on June 5, 2018, Doctor-3 wrote that Complainant should not work until June 24, 2018, and that it should be part- time with limitations of no bending, stooping, twisting, or lifting more than 15 pounds. He also noted that Doctor-1 reported on June 12, 2018, that Complainant was still taking the sedating medication Pregabalin and the opioid medication Tramadol. On July 2, 2018, S2, Lead TSM, issued a Notice of Proposed Removal to Complainant for not being medically qualified for the Transportation Security Officer position in light of Doctor-2’s finding the he did not meet the medical requirements of the STSO position. By letter dated July 2, 2018, the Agency, due to Complainant’s medical disqualification, offered to place Complainant in a job search program in order to seek reassignment to another position. Complainant, on July 9, 2018, however, returned the form and declined the job search, opting for disability retirement, and requesting LWOP until the Office of Personnel Management approved his application for disability retirement. Complainant also requested information about the retirement process. The Assistant Administrator of Human Capital granted an extension of LWOP until November 10, 2018, to provide an additional six months for Complainant to recover from his back ailment and surgery. Complainant provided additional medical information to Doctor-2 on July 12, 2018. In July and August 2018, Doctor-2, after receiving updated medical information, found that Complainant continued to not be medically qualified to perform the full and unrestricted duties of an STSO position. Doctor-1 completed a report, including a Return to Work Questionnaire on October 15, 2018. She reported that Complainant was still restricted to lifting no more than 15 pounds, could sit for one-hour maximum and required adjustable chairs, not low sitting chairs. He could not climb, kneel, squat, bend, and stoop to inspect individuals and baggage/cargo, but retained the ability to feel and manipulate small objects with both hands, and that he could maintain focus and awareness during an entire shift. Doctor-1 could not provide a date that Complainant could return to unrestricted full-duty but again stated that she would reassess him in 30 days. 2021001366 5 In a memorandum dated October 23, 2018, the Assistant Federal Security Director for Screening notified Complainant that Doctor-2 had reviewed his updated medical information and determined that he was still not medically qualified for the STSO position. Complainant’s removal was effective November 11, 2018. ANALYSIS AND FINDINGS 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”). Disparate Treatment In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies, as it does here, its decisions were motivated by Complainant’s disability and there is no direct evidence of discrimination, Complainant must demonstrate that: (1) he is an “individual with a disability;” (2) he is “qualified” for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established that he was a qualified individual with a disability and was subjected to an adverse action with respect to claims 1, 2, and 3, and that he also established a prima facie case of discrimination based on retaliation with respect to claim 3, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions, i.e., HRS1 not only responded to Complainant on June 5th, but, more importantly, forwarded his medical documentation from Doctor-3 to Doctor-2 for a fitness for duty determination; and that the Agency proposed, and, subsequently, removed Complainant because, after numerous fitness for duty examinations, he was determined to not be medically able to perform the essential functions of his position. We find no persuasive evidence of pretext here. 2021001366 6 On appeal, Complainant argues that he was treated differently than six other STSOs, who although previously injured came back to work after a period of recovery. According to Complainant, C1 broke his ankle falling off a ladder while at home, was off work for several weeks, brought back to work and was given a detailed position for a year or two; C2 was injured in a car accident and off work for close to a year, but came back to work as a STSO; C3, had a medical problem and was off work and brought back to his position; C4 after a knee injury was allowed to work half shift for months; C5 after a difficult pregnancy was off work for an extended period of time; and C6 after an on the job injury was placed in a detail position in Human Resources. Although cognizant of the Agency’s position that Complainant is raising this argument for the first time on appeal, we also find no persuasive evidence that he established that he is similarly situated to any of these individuals. Specifically, there is no evidence that: they were continued in their positions after they were repeatedly found to be medically unable to perform the duties of their positions; or they could not be reasonably accommodated. Reasonable Accommodation Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To the extent that Complainant is also alleging that he was denied a reasonable accommodation, he 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 him with a reasonable accommodation. See, e.g., Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Reasonable accommodation includes modifications to the work environment or to manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential job functions. 29 C.F.R. §1630.2(o)(ii). Assuming, arguendo, Complainant is an individual with a disability, we find that he did not establish that he was qualified because he could not perform the essential functions of his position. As late as October 15, 2018, Doctor-1 reported that Complainant was still restricted to lifting no more than 15 pounds, could not climb, kneel, squat, bend, and stoop to inspect individuals and baggage/cargo, and she could not provide a date that Complainant could return to unrestricted full-duty. Complainant maintained that he could have performed light duty but there is no indication there was any work for him within the restrictions set forth by Doctors 1 and 3. 2021001366 7 Complainant has simply not established that there was an effective means available to accommodate him in the position he held. Moreover, he has not established that there was a vacant, funded position to which he could have been reassigned because he decided not to participate in the Agency’s job search program and seek reassignment to another position, but instead opted for disability retirement. Accordingly, we do not find that he was denied a reasonable accommodation. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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). 2021001366 8 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). 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 March 9, 2022 Date
