U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eldon P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005812 Hearing No. 520-2018-00013X Agency No. HS-TSA-00852-2017 DECISION On August 12, 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 August 7, 2019, final order 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 order adopting the AJ’s decision finding no discrimination. ISSUES PRESENTED The issues presented are whether the Agency was entitled to a grant of its motion for summary judgment as a matter of law; and whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discrimination based on his disability. 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. 2019005812 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO) at the Bangor International Airport in Bangor, Maine. On May 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical and mental) when on January 9, 2017,2 the Agency decided not to extend Complainant’s limited duty assignment. The investigative record reflects the following pertinent matters relating to the subject claim. LTSOs are responsible for engaging in threat mitigation activities to protect aviation and other transportation modes, including making independent, security-based decisions at airport checkpoints by using experience, observation, and passenger engagement. LTSOs must use critical thinking skills, situational awareness, attention to detail, reading, and visual observation, including taking in and recalling visual sensory information. On July 27, 2016, Complainant sustained a serious on-the-job head injury which resulted in a concussion that affected his vision, balance, focus, memory, energy, and concentration. Complainant acknowledged that the injury impacted him greatly, noting that he experienced memory loss while recovering from the concussion. Complainant filed a claim with the Department of Labor, Office of Workers’ Compensation Programs (OWCP), which was accepted. In October 2016, Complainant was working with his doctor to heal from the effects of the injury. Complainant’s doctor determined that Complainant could not perform his regular LTSO duties due his head injury. Complainant noted that his vision would take several months to heal, but that he was working on getting specialty prism glasses that assisted the healing process. Due to a delay in the OWCP system, Complainant could not obtain the necessary prism glasses until July 2017. Based on his medical documentation, Complainant was offered a limited duty assignment. Under this offer, Complainant was to work four-hour shifts performing the following duties; some but not all of the duties were typically performed by LTSOs: exit lane, walk-through metal detector (WTMD), divestiture, Standard Operating Procedures (SOP) reading, Online Learning Center (OLC) activities, and performing screening operator functions at the Advanced Imaging Tech (body scanner) machine. Complainant returned to work on October 30, 2016, under this limited duty offer. In early November 2016, three of Complainant’s coworkers expressed safety concerns regarding Complainant’s ability to work in his condition. 2 The acceptance letter, and various parts of the record, erroneously listed this date as occurring in January 2016. 2019005812 3 The coworkers shared concerns regarding Complainant’s inability to focus, frequent statements of having severe headaches, and noticeable concentration and memory issues. One coworker noted that Complainant’s inability to concentrate created a vulnerability at the checkpoint and that Complainant, at times, provided incorrect advisements to passengers. Another coworker also stated that, on numerous occasions, Complainant failed to provide proper advisements and that passengers were frequently not “divesting items”3 properly because Complainant was not concentrating at the task at hand. On November 21, 2016, Complainant’s limited duty assignment was modified due to these safety and security concerns. Complainant was limited to working the exit lane, SOP reading, and OLC activities. By its original terms, Complainant’s modified limited duty assignment was to be reviewed on January 9, 2017. During his review, the Deputy Federal Security Director reviewed the limited duty assignment; documented observations from Complainant’s colleagues; and statements from Complainant where he acknowledged frequent dizziness and concentration and memory issues. After consulting with the Supervisor of Human Resources, the Deputy Federal Security Director determined that the combination of factors posed too high of a security risk to extend Complainant’s limited duty assignment. On January 9, 2017, the Agency decided that Complainant’s limited duty assignment would not be extended because Complainant was unable to safely perform the modified limited duty assignment and posed a security risk. Complainant was placed in off-work status from January 2017 to July 2017. In July 2017, after obtaining specialty prism glasses that allowed him to better see, concentrate, and reduce his debilitating headaches, Complainant returned to work. With the specialty glasses, Complainant was able to perform all essential functions of his position. At the conclusion of the investigation, 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 (AJ). Complainant timely requested a hearing. Both Complainant and the Agency submitted Motions for Summary Judgment. Over Complainant’s objections, the AJ assigned to the case determined that the complaint did not warrant a hearing. On July 2, 2019, the AJ issued a decision without a hearing in favor of the Agency. The Agency provided that, during the relevant time, Complainant was no longer qualified as he was incapable of performing the essential functions of his limited duty assignment. The Agency noted that, as soon as Complainant was able to obtain his specialty prism glasses, he returned to work. Based on the record, the AJ also determined that following Complainant’s on-the-job injury (concussion) he was no longer qualified for his LTSO position, even with his limited duty assignment. The AJ noted that Complainant acknowledged that his injury caused impairment to his sight, created memory loss episodes, made it difficult for him to concentrate, induced frequent headaches, and caused dizziness and fatigue. 3 "Divesting items" means having passengers remove potential security and/or safety items for examination. 2019005812 4 The AJ determined that the Agency’s decision, declining to extend Complainant’s limited duty assignment, was therefore legitimate and nondiscriminatory. On August 7, 2019, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ was biased towards him because he had made procedural mistakes during the pre-hearing stage. Specifically, this regards Complainant submitting sur-replies4 that were explicitly prohibited by the AJ. Complainant asserts that the AJ’s response to him indicates a bias towards him. Regarding the matter at issue, Complainant asserts that he was cleared by his doctor to return to work part-time with restrictions and, as such, should have had his limited duty offer extended. In response, the Agency asserts that Complainant failed to demonstrate a prima facie case of discrimination because he cannot demonstrate that he was a qualified individual with a disability and cannot establish an inference of discrimination. Even if he were able to do so, the Agency argues that it articulated legitimate, nondiscriminatory reasons for its action and Complainant cannot show that the Agency’s explanations are pretext for disability discrimination. The Agency requested that the Commission affirm its FAD. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 4 On June 13, 2019, the Agency filed an Objection to Complainant’s Sur-Replies with the AJ, objecting to Complainant’s June 12 and 13, 2019, sur-replies as violation of the AJ’s prior April 2019 Order regarding summary judgment motions. 2019005812 5 EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in his opposition to the motion for summary judgment and on appeal, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Dissatisfaction with AJ’s Processing of the Complaint Complainant asserted that the AJ clearly demonstrated bias against him when the AJ sent an email to Complainant, dated June 13, 2019, regarding his sur-replies (Complainant’s replies to the Agency’s reply brief regarding his motion for summary judgment, i.e., a sur-reply). The record is clear regarding the procedural process laid out by the AJ regarding sur-replies. It is also clear that Complainant violated the AJ’s orders by submitting two additional sur-replies. The incident referenced by Complainant was the AJ reminding Complainant of the procedural rules previously set out. The AJ’s email to Complainant and the subsequent decision do not indicate any bias against Complainant. As such, the Commission is not persuaded by Complainant’s assertion on appeal that the AJ was biased. 2019005812 6 Disparate Treatment Based on Disability Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Assuming Complainant established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Specifically, the Agency did not extend Complainant’s limited duty assignment based on documented observations that demonstrated that he struggled with the aftermath of July 2016 concussion. In this matter, the Agency relied on various statements from Complainant’s coworkers and statements from Complainant that demonstrated that he was still feeling and exhibiting the effects of his July 2016 concussion upon his return in October 2016, and through November 2016. The Agency also noted that the decision was based on the Agency having to modify his initial limited duty offer after he demonstrated difficulties with the initial offer. The record demonstrated that the Agency relied on these statements and observations when it declined to extend Complainant’s limited duty assignment. There is no indication that the action was motivated by discriminatory animus. Complainant argued that the Agency should have sent him for a medical examination instead of relying on observations from his coworkers. An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. An agency may make an employment decision for a “good reason, a bad reason, a reason based on erroneous fact, or for no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Comm’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). 2019005812 7 Here, the Agency chose not to extend Complainant’s limited duty position once it expired based on documented observations indicating that Complainant was exhibiting difficulty while performing the functions of his further modified limited duty position. We note that Complainant acknowledged during the investigation, and in his Motion for Summary Judgment, that he felt the effects of his July 2016 concussion in October and November 2016. Complainant acknowledged that, when he returned to work, words often “looked like jumble. [He] couldn’t make sense of the words.” Complainant also noted that “on occasions [he] would feel a sharp pain in the area where [he] hit [his] head, to best describe it, as if somebody was driving a nail into [his] skull.” Complainant also conceded to experiencing dizziness, fatigue, and balance issues. Upon review, the Commission finds that Complainant has failed to show by a preponderance of the evidence that the Agency was motivated by discriminatory animus when it engaged in the alleged discriminatory action. As detailed by the record and in the AJ’s decision, the record supports the AJ’s determination that the Agency’s proffered reasons were legitimate and non- discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s action was pretext for discrimination. In so concluding, we have also found that Complainant has not shown that he was subjected to disparate treatment. Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). The term qualified means “that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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). Essential functions are the fundamental duties of a job, i.e., the outcomes that must be achieved by someone in that position. Id. at § 1630.2(n); Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). The function may be essential because the reason the position exists is to perform that function. 29 C.F.R. § 1630.2(n). While not explicitly alleged, we note that Complainant’s concerns essentially regard reasonable accommodation matters. Specifically, Complainant was essentially asserting that the Agency should have allowed him to continue working in his limited duty role by extending his limited duty assignment. 2019005812 8 Based on the record, we find no indication that the Agency unlawfully failed to provide Complainant with a reasonable accommodation when it declined to extend Complainant’s limited duty assignment. During the relevant time period, from January 2017 to July 2017, Complainant failed to demonstrate that he was qualified for the position. Complainant has the threshold burden of establishing that he is a qualified individual with a disability, and that there is a nexus between his disability and his need for accommodation in order to be entitled to a reasonable accommodation under the Rehabilitation Act. See Nelson v. U.S. Postal Serv., EEOC Appeal No. 01981981 (Aug. 17, 2001); Ricco v. U.S. Postal Serv., EEOC Appeal No. 07A10007 (Feb. 21, 2002); Struthers v. Dep’t of the Navy, 07A40043 (June 29, 2006). What the record discloses is that, during the relevant time period, Complainant had a variety of ailments that interfered with his performance of the essential functions of his job. As noted earlier, to be a “qualified individual with a disability,” Complainant must be able to perform the essential functions of his position, with or without an accommodation. 29 C.F.R. § 1630.2(m). The Commission’s Enforcement Guidance explains that an employer does not have to eliminate an essential function of a position to accommodate an individual with a disability. Enforcement Guidance at “General Principles”; Gerald L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130776 (Nov. 10, 2015). Complainant has not identified a reasonable accommodation that would have enabled him to perform the essential functions of his limited duty LTSO position.5 We note that the Rehabilitation Act does not require an agency to provide “make do” work, create “make work” jobs, or transform light-duty or limited-duty assignments into permanent jobs to accommodate an employee’s disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see also Josephine S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161196 (June 26, 2018) (agency does not have to create “make do” or “make work” jobs); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014) (employer not required to provide “make do” work or create a job for an employee with a disability); Wood v. U.S. Postal Serv., EEOC Appeal No. 01A46073 (May 5, 2006) (employer not required to transform temporary light-duty jobs into permanent jobs to accommodate a disability). To the extent that Complainant is arguing that the Agency should have extended the limited-duty position for him as part of its reasonable accommodation obligations under the Rehabilitation Act, his argument is without merit. Unlawful Harassment In his harassment claim, Complainant generally alleged that management subjected him to a hostile work environment by declining to extend his limited duty offer upon its expiration. Based on the record, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 5 We note that Complainant only sought reasonable accommodation within his LTSO position. 2019005812 9 To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2019005812 10 In the absence of a legible postmark, 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). 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. 2019005812 11 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, Director Office of Federal Operations May 24, 2021 Date
