U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bud D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2022003516 Appeal No. 2021005088 Hearing No. 480-2020-00262X Agency No. HS-TSA-00941-2019 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021005088 (April 27, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, we DENY the request. At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), SV-1802-E Band, at Hilo International Airport in Hilo, Hawaii. 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. 2022003516 2 On July 5, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Caucasian), disability (diabetes), age (over 40), and in reprisal for prior protected EEO activity when: 1. On or about March 3, 2019, Complainant learned he was being recommended for termination; 2. On or about March 14, 2019, management issued Complainant a notice of 14-day suspension; 3. On or about September 18, 2019, management issued Complainant a fitness for duty evaluation; 4. On or about August 9, 2019, management informed Complainant that he could not have his diabetes supplies at the checkpoint while working; 5. On or about August 21, 2019, management issued Complainant a 14-day suspension; and 6. On or about August 9, 2019 management directed Complainant to do remediation training stemming from an incident that occurred on August 7, 2019.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In the decision, the AJ determined that the Agency had legitimate, nondiscriminatory reasons for suspending Complainant, directing him to undergo a fitness for duty examination, and ordering him to undergo remedial training. The AJ ultimately found no persuasive evidence of pretext because the record showed that: 1) Complainant conceded that he had made the errors that management had accused him of making; and 2) management “took the sensible approach of first offering additional training to ensure the error was not skills-based and second investigating further to figure out the root cause of the error” prior to suspending him. To the extent that Complainant was alleging that the examination was an impermissible medical inquiry, the AJ found that the claim would still fail because the Agency’s inquiry was job- relatedness and necessary given that Complainant made a serious on-the-job error possibly due to his physical condition. Thus, the AJ found that under the circumstances, the Agency could permissibly inquire further about the impact of Complainant's physical condition on his ability to perform his job. 2 The AJ dismissed several additional claims for untimely EEO Counselor contact and for being raised in prior withdrawn complaints. Complainant raised no challenges regarding these matters on appeal, we need not consider them on reconsideration. 2022003516 3 Finally, to the extent that Complainant alleged that he was denied reasonable accommodation, the AJ noted that in 2011 the Agency granted Complainant permission to use a private screening room for his blood tests. The AJ found that contrary to the terms of the accommodation agreement, Complainant repeatedly conducted his blood test at the checkpoint. While the AJ noted that Complainant seemed to argue that he was entitled to conduct a blood test at the public checkpoint rather than a private room, the AJ emphasized that Complainant was not entitled to the accommodation of his choice and there was no evidence that the provided accommodation was ineffective. Accordingly, the AJ found that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. The AJ therefore concluded that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ's decision. Complainant subsequently appealed the Agency’s final order to the Commission. In appealing the Agency’s final order, Complainant vehemently denied being responsible for the security screening breach that occurred on August 7, 2019. Complainant emphasized, in relevant part, that “since the 2011 Reasonable Accommodation agreement, he had performed self-tests in the private screening room and in other areas where no one could see him and when no passengers were present, including on August 7, 2019.” Complainant denied ever testing his glucose levels in the presence of passengers and maintained that there was no video footage of record showing him engaged in that activity. He further argued that the Agency, in directing him to undergo a fitness for duty examination, violated its own guidelines that specifically set forth the limited circumstances when managers may order employees to undergo such examinations. In addition to alleging disability discrimination, Complainant also reasoned that the Agency’s actions were based on race because a coworker of his overheard unnamed managers using the term “haole” in a private conversation. He emphasized that while the term had historically been used to refer to foreigners, in modern practice, the term had evolved as a slur against Caucasian people. Complainant ultimately requested that the Commission remand the matter for a hearing. The Agency, however, opposed Complainant’s appeal and requested that the Commission affirm its final order. On April 27, 2022, our appellate decision succinctly found that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. In response to our decision, Complainant filed the instant request for reconsideration, containing three main points for our consideration. First, Complainant argues that the appellate decision involved a clearly erroneous interpretation of material fact or law in denying him the opportunity to have an evidentiary hearing to determine: 1) whether a closed circuit television (CCTV) recording of the security screening breach incident exists; and 2) challenge his supervisor’s account of he actually saw. Complainant vehemently argues that if the Agency had a recording in its possession, it should have made the recording available to Complainant and the Commission. 2022003516 4 Second, Complainant argues that the appellate decision ignored all evidence of pretext. While Complainant acknowledges that the reasonable accommodation agreement that he entered into with the Agency in 2011, allowed him to self-test as needed in private areas, he needed to self- test at his post because the essential functions of the TSO position specified that TSOs may not leave their posts. He argues that the Agency used his diabetes as a pretext to terminate his employment. Finally, Complainant maintains that the appellate decision involved clearly erroneous interpretation of material fact or law with regard to his allegations of racial discrimination. In so arguing, Complainant reiterates that the term “haole” is discriminatory towards Caucasian people. The Agency opposes the request and maintains that the appellate decision properly found no discrimination. In relevant part, the Agency emphasizes that: 1) Complainant always had access to the CCTV recording of his misconduct at the security checkpoint; 2) Complainant violated his reasonable accommodation agreement by checking his glucose level at the security checkpoint rather than the provided private room; and 3) his “[i]solated and non-specific references to “haole” are insufficient to establish discrimination or retaliation.” After reviewing the appellate decision and the entire record, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405 because the arguments that Complainant raised in support of his request appear to be strikingly similar to the arguments that were previously considered and rejected on appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5, 2015). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Ultimately, we conclude that Complainant failed to make the requisite showing. We therefore DENY the request. The decision in EEOC Appeal No. 2021005088 remains our decision. There is no further right of administrative appeal. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 2022003516 5 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 October 17, 2022 Date
