U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garth N.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021003838 Hearing No. 480-2021-00291X Agency No. HS-TSA-01925-2020 DECISION 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 July 2, 2021 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, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer (STSO), SV-1802-G at the Santa Maria Airport in Santa Maria, California. On September 14, 2020, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the bases of disability (color blindness) and age (YOB: 1963) when on July 10, 2020, management medically disqualified Complainant from his position as a STSO for failing a color vision test. 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. 2021003838 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the investigative report (IR) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment In order to warrant a hearing on this 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). His 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 the Agency officials articulated legitimate and nondiscriminatory reasons for removing Complainant from his position as an STSO. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Affidavit testimony from Agency officials and other documents establish that the Agency’s Inspector General had issued a report finding that TSOs with color- blindness could not interpret x-ray images. 2021003838 3 In response to that report, the Agency instituted a policy requiring all TSOs hired before 2017 to take a color vision test. Complainant took and failed the color vision test. IR 58-59, 62-63, 66-67, 70-71, 75, 79-80, 96, 106, 148, 150, 152-53. To move forward with a hearing, Complainant must also 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). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Complainant does not dispute that he had color blindness or that he had failed the color vision test. IR 48-49. When asked why he believed that his age was a factor in the decision to remove him from his Supervisory TSO position, Complainant averred that the Agency wanted to push out the more experienced and higher-paid employees and replace them with younger employees. He also averred that he had heard rumors that an unnamed employee was medically disqualified and separated. IR 51. The record establishes, however, that the color vision test policy was implemented in accordance with the Aviation and Transportation Security Act (ATSA), which requires that security screeners possess physical abilities that include color perception. Anthony M. v. Dep’t of Homeland Security - Transportation Security Administration, EEOC Appeal No. 2021001275 (May 11, 2022) citing 49 U.S.C. § 44935(f)(1)(B). The ATSA also provides that “at a minimum [a security screener must] meet such other qualifications as the Under Secretary may establish.” Id, citing 49 U.S.C. § 44935(e)(2)(A)(iv). Moreover, to the extent that a conflict exists between the Rehabilitation Act and the ATSA, the ATSA standard will supersede any Rehabilitation Act requirements to the contrary. Id. Beyond his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which raise a genuine issue of material fact as to the existence of any of the indicators of pretext listed above, or which otherwise contradict or undermine the evidentiary findings upon which the AJ’s summary judgment rests. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. Denial of Reasonable Accommodation Complainant also averred that the Agency was unwilling to accommodate him because of the results of his color vision test that revealed his color-blindness. IR 50. An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise 2021003838 4 qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to raise a genuine issue of material fact as to whether he was denied a reasonable accommodation, Complainant must present evidence tending to 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, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Assuming that Complainant meets the first condition of entitlement to reasonable accommodation, he has not presented enough evidence to raise a genuine issue of material fact as to whether he meets the second. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Anthony M. is a case virtually identical to the one now before us, except for the disqualifying condition. In Anthony M., the Chief Medical Officer concluded that the complainant was not medically qualified for the TSO position because his condition of obstructive sleep apnea interfered with the performance of working different shifts. Consequently, he could not meet the medical requirements mandated by ATSA for screening positions, and therefore could not perform the essential functions of the TSO position. IR 71, 148, In the same vein, because the results of the color vision test indicated that Complainant has color-blindness, the MRO determined that Complainant could not interpret x-ray images and, just as in Anthony M., could not perform the essential functions of the TSO position. He is thus not a qualified individual with a disability with respect to that position. Even if Complainant was successful in raising a genuine issue of material fact whether he is a qualified individual with a disability, he has not presented any evidence apart from his own contentions to show that the Agency failed to provide him with a reasonable accommodation. While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Owen T. v. Dep’t of the Army, EEOC Appeal No. 0120180596 (June 12, 2019) citing Lynette B. v. Dep't of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Contrary to Complainant’s assertion that the Agency failed to accommodate him, the Agency did accommodate him. The Agency accepted Complainant into its job search program, through which he was given a permanent non-screening position at Phoenix Sky Harbor International Airport. While the search was underway, the Assistant Federal Security Director and the Transportation Security Manager helped find administrative duties for Complainant to perform in lieu of screening, which he was no longer able to do, which Complainant himself admitted. IR 50, 67, 71. Complainant accepted the position in Phoenix despite expressing his preference to remain in Santa Maria, California. Even though the position was at a lower grade than his former position in Santa Maria, he was given full pay retention, and therefore did not lose any of his salary. IR 85-86, 91. 2021003838 5 Consequently, we find that Complainant has not raised any genuine issue of material fact with respect to whether the Agency provided him with a reasonable accommodation. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021003838 6 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 October 13, 2022 Date
