U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dino B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2021000450 Appeal No. 2019002816 Hearing No. 450-2016-00377X Agency No. HS-TSA-24224-2015 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Dino B. v Dep’t of Homeland Sec., EEOC Appeal No. 2019002816 (Sept. 22, 2020). 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). Complainant, an applicant for an SV-1802-D Transportation Security Officer (TSO) position with the Agency at Dallas/Fort Worth International Airport in Fort Worth, Texas, filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental) and age (born in May 1954) when: 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. 2021000450 2 1. On May 29, 2015, Comprehensive Health Services (CHS) notified Complainant that he was medically disqualified from the TSO position; and 2. Shortly after May 29, 2015, Physician Assistant (PA1) failed to cooperate with Complainant during a phone call about his medical disqualification and informed him that, even if he won the dispute regarding his disqualification, CHS would find another reason to disqualify him. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter granted the Agency’s motion and issued a summary judgment decision finding no discrimination. The Agency subsequently issued a final order fully implementing the AJ’s decision. In the appellate decision, the Commission vacated the final order. The Commission found that the AJ erred in determining that there were no genuine issues of material fact. More specifically, the Agency’s Medical and Psychological Guidelines state that TSO candidates who currently have major depressive disorder or who have had two episodes of major depression during their lifetime are medically disqualified for the position. The Commission found that based on the record, had the AJ drawn all justifiable inferences in Complainant's favor, the AJ could have concluded that Complainant had only experienced one episode of major depression. Thus, the Commission concluded that there was a genuine issue of material fact concerning Complainant's major depressive disorder, and a hearing was necessary to resolve it. The Commission remanded the matter for a hearing. In its request for reconsideration, the Agency argues that the Commission’s appellate decision was clearly erroneous. The Agency contends that the Commission is attempting to substitute its or an AJ’s medical judgment for the Agency’s designated medical professionals. The Agency argues that it is the Agency’s medical and occupational health experts who have exclusive authority to issue the Agency’s medical qualification determinations, not the Commission. Accordingly, the Agency requests that the Commission grant its request for reconsideration. The Commission recognizes the Agency’s argument regarding the Aviation and Transportation Security Act (ATSA). Under the ATSA, the Agency has broad authority to determine the terms and conditions for security screeners such as TSOs. The Commission has found that, although the Rehabilitation Act cannot negate or override ATSA-mandated qualification standards, the Commission has jurisdiction over EEO complaints filed by security screeners, and that the Rehabilitation Act is only superseded by the ATSA when the two statutes conflict. See Getzlow v. Dep't of Homeland Sec., EEOC Appeal No. 0120053286 (June 26, 2007), request for recons. denied, EEOC Request No. 0520070839 (Oct. 12, 2007). Despite the Agency’s arguments otherwise, the Commission did not attempt to substitute its judgment for the Agency’s medical professionals. Rather, the Commission simply determined that there were genuine issues of material fact regarding the reasons for Complainant’s medical disqualification based on several contradictions and uncertainties in the record that necessitate a hearing. 2021000450 3 Furthermore, the Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 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. The Agency has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2019002816 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below ORDER (E0618) The Agency is directed to submit a copy of the complaint file to the EEOC Dallas District Office Hearings Unit of within 15 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2021000450 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (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 June 8, 2021 Date
