U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020001893 Hearing No. 510-2018-00098X Agency No. HS-TSA-01954-2017 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 November 14, 2019 final agency decision (FAD) concerning her 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 events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), E-Band, at the Miami International Airport in Miami, Florida. Complainant stated she had a severe speech impediment as a result of a stroke she had in July 2013. Complainant asserted that she only experienced complications with her speech and no other cognitive functions. In January 2017, the Acting Assistant Federal Security Director for Screening (AFSD-S) stated that Complainant approached him regarding problems she was having with a contractor, but she was having difficulty communicating with him and requested to 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. 2020001893 2 write down what she was trying to communicate. AFSD-S stated that months later, another manager reported that Complainant was having similar issues communicating. Complainant’s position required her to deliver instructions and advisements to passengers and Complainant was using hand gestures to communicate. As a result, in April 2017, management provided Complainant with a Fitness for Duty Medical Questionnaire based on her inability to communicate clearly. Beginning on April 27, 2017, management removed Complainant’s screening duties and assigned her non-screening duties pending the outcome of the Fitness for Duty assessment. In addition, Complainant submitted medical documentation from her doctor indicating that she had to be able to sleep between midnight and 8:00 a.m. As a result, Complainant was unable to work a night shift. On May 5, 2017, the Chief Medical Officer (CMO) determined that Complainant was temporarily not medically qualified for the TSO position as she could not perform the full duties of her position. Agency management requested a Fitness for Duty Determination Reconsideration for Complainant. As a result, management requested that Complainant complete a second Fitness for Duty Questionnaire in July 2017. Complainant submitted medical documentation indicating that her condition caused “stuttering, but no problem with comprehension, cognitive, behavior” and that she had no work limitations. As a result, on July 31, 2017, CMO found that Complainant was medically qualified for the TSO position. When Complainant returned to full duty, management required her to retest/recertify since she had not conducted screening duties since April 2017. On October 5, 2017, Complainant filed a formal EEO complaint alleging that the Agency unlawfully discriminated against her based on her disability (stroke/speech impediment) and reprisal (prior EEO activity), when: (1) on April 27, 2017, management required that Complainant complete a Fitness for Duty Medical Questionnaire; (2) from April 27, 2017 to present, some of Complainant’s duties have been removed; (3) on May 5, 2017, management found Complainant temporarily not medically qualified to perform all of her Transportation Security Officer’s duties; (4) on June 6, 2017, Complainant was placed in a position with non- screening functions; (5) on July 7, 2017, management required that Complainant complete a Fitness for Duty Medical Questionnaire; and (6) in or around September 2017, management required Complainant to retest/recertify upon return to duty.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The AJ dismissed the hearing request and remanded the matter to the Agency for issuance of a FAD. Thereafter, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. 2 Complainant failed on her first attempt, but subsequently passed. 2020001893 3 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”). Fitness for Duty Questionnaires Under Commission regulations, a fitness for duty examination may be ordered only if it is job- related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 (July 27, 2000) at Q.5. In this case, we find that the Agency properly ordered the Fitness for Duty examinations. The record shows that the Agency observed objective evidence that Complainant may be unable to safely perform the essential functions of her position when she had difficulty communicating clearly with co-workers, managers, and passengers. Complainant’s position required her to deliver instructions and advisements to passengers and Complainant had been observed using hand gestures to demonstrate “what she needed to do.” Thus, management had legitimate concerns that Complainant could not safely perform the duties of her position and posed a safety threat to herself and others. Complainant was moved to non-screening duties pending the outcome of the Fitness for Duty assessment. In addition, Complainant’s doctor indicated that Complainant was unable to work a night shift. As a result, Complainant was found temporarily medically unqualified for the position in May 2017. Complainant submitted additional medical documentation in June 2017, in which Complainant’s doctor stated that Complainant had no work limitations. Management then issued Complainant a second Fitness for Duty Questionnaire. In July 2017, CMO determined that Complainant was medically qualified for the TSO position based on the submitted documentation. We find that the Agency had a reasonable belief that Complainant was unable to safely perform the essential functions of her job and that the requests for Complainant to submit to the Fitness for Duty Questionnaires were not a violation of the Rehabilitation Act because the Agency adequately established that it was job-related and consistent with business necessity. 2020001893 4 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Specifically, as discussed above the record shows that the Agency had a reasonable belief, based on objective evidence, that Complainant could not safely perform the duties of her position and posed a safety threat to herself and others. In addition, Complainant was required to recertify/retest when she returned to full duty pursuant to Agency policy and procedure because she had not performed screening duties since April 2017. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory or retaliatory motivations. Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. After a review of the record in its entirety, we AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination as alleged by Complainant. 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 2020001893 5 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. 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. 2020001893 6 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 August 12, 2021 Date
