U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilmer M.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005958 Hearing No. 540-2017-00101X Agency No. HS-TSA-25304-2016 DECISION On September 25, 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 October 18, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and 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. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the Agency discriminated against Complainant based on his disability and in reprisal for prior protected EEO activity. 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. 2019005958 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (TSO) at the Agency’s Albuquerque International Airport in Albuquerque, New Mexico. Complainant worked at the Agency from September 2002 though December 2015. On August 2, 2015, Complainant submitted a Family and Medical Leave Act (FMLA) certification. Therein, Complainant’s physician noted that Complainant suffered from gout and takes medication for flare-ups, which causes fatigue. The certification stated that Complainant’s episodes were expected to occur three times a month, lasting three days per episode. Based on the FMLA documentation, Complainant’s records were forwarded to the Agency’s Office of the Chief Medical Officer to review whether he was fit for duty as a Lead TSO. According to Complainant, on or about November 15, 2015, his first-line supervisor (S1) informed him that he had been pressured to lower Complainant’s 2013 Transportation Officer Performance System (TOPS) rating. Complainant could not recall his original score or the revised score. He asserted that multiple individuals informed him that they were pressured by the Federal Security Director (FSD) to lower TOPS ratings. However, Complainant believed that his score was lowered due to his absences from work. On November 20, 2015, the Agency’s Chief Medical Officer determined that Complainant was not medically qualified for the TSO position. The Chief Medical Officer found that Complainant did not satisfy the medical requirements for his job series because he could not walk up to two miles per shift and his records reflected the use of an opioid medication. On November 30, 2015, the Assistant Federal Security Director (AFSD) issued Complainant a Notice of Proposed Removal (Notice). The Notice stated that a Medical Review Officer had determined that Complainant did not meet the Medical Guidelines for the LTSO position because Complainant’s physician reported that Complainant could not walk up to two miles during a shift and that Complainant was prescribed oxycodone, an opioid medication. The Notice referenced provisions in the Medical Guidelines for Transportation Security Officers (Medical Guidelines) pertaining to Crystal Related Arthritis (Gout) and pain. According to the Medical Guidelines, recurrent attacks with functional limitation of the hands and/or with ambulation are unacceptable. Likewise, the Medical Guidelines state that use of sedating and/or mood-altering medication or pain that interferes with job tasks are unacceptable. The Agency informed Complainant of his eligibility to request a job search for possible reassignment to a vacant position, which he declined. Finally, Complainant was placed on administrative leave for seven calendar days upon receipt of the Notice. On December 30, 2015, FSD issued a Notice of Decision, removing Complainant from federal service. 2019005958 3 On January 5, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his disability and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On November 15, 2015, Complainant discovered that a management official intentionally lowered his 2013 TOPS rating unlike other similarly situated employees outside his protected bases; and 2. On December 3, 2015, management placed Complainant on administrative leave and subsequently issued a Notice of Proposed Removal.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 4, 2018, motion for a decision without a hearing and issued a decision without a hearing on September 11, 2019. The AJ found that Complainant failed to establish that he was subjected to unlawful discrimination. Specifically, the AJ stated that upon review of the pleadings, exhibits, and the ROI, he had determined that the Agency’s motion identified the accepted claims, undisputed facts, applicable legal standards, and grounds upon which the case should be decided without a hearing. Accordingly, the AJ adopted the Agency’s motion in its entirety and awarded summary judgment in favor of the Agency on all claims. The Agency subsequently 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 The parties did not submit arguments on appeal. STANDARD OF REVIEW 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. (Aug. 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). 2 The Agency issued Complainant a Notice of Decision on Proposed Removal on December 30, 2015, which sustained Complainant’s removal. 2019005958 4 This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 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). 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 carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has failed to establish such a dispute. As such, we concur with the AJ’s decision to grant the Agency’s motion for a decision without a hearing. Removal Based on Disability Under the Commission’s regulations, the Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause undue hardship. 29 C.F.R. § 1630.9. An individual with a disability is “qualified” if he or she meets the skills, experience, education, and other job-related requirements of the position at issue and can perform the position’s essential functions with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). 2019005958 5 In this case, the Agency argues that Complainant was not qualified for the Lead TSO position because he did not meet the medical qualification requirements for the position. The Agency maintains that Complainant could not meet the medical requirements mandated by the Aviation Transportation and Security Act (ATSA). Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001, “to improve aviation security” by effecting “fundamental change in the way [the United States] approaches the task of ensuring the safety and security of the civil air transportation system.” H.R. Conf. Rep. No. 107-296, at 53 (2001)§ 114. Section 111(d) of the ATSA codified as a note to 49 U.S.C. §44935, states, in pertinent part: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions… 49 U.S.C. § 44935 note, 115 Stat. 597, 620. The statute requires that security screeners “demonstrate a daily fitness for duty, without any impairment due to illegal drugs, sleep deprivation medication, or alcohol,” 49 U.S.C. §44935(c)(2)(A)(v), and “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.” Id. §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.§44935(e)(2)(A)(iv). The Commission has long held that although the ATSA gave the Agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from §501 of the Rehabilitation Act and the other employment discrimination laws. Chapman v. Dep’t of Homeland Sec., EEOC Appeal No. 0120051049 (Aug. 6, 2008), req. for recons. den., EEOC Request No. 0520080805 (Dec. 11, 2008); Adams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120054463 (Aug. 31, 2007); Getzlow v. Dep’t of Homeland Sec., EEOC Appeal No. 0120053286 (June 26, 2007), req. for recons. den. EEOC Request No. 0520070839 (Oct. 12, 2007). In Getzlow, the Commission found that although a TSO must show that he or she meets the standards established pursuant to the ATSA to be qualified under the Rehabilitation Act, not all these standards will conflict with the Rehabilitation Act. The Agency must comply with the requirements of the Rehabilitation Act where there is no conflict between the qualifications established pursuant to the ATSA and the requirements of the Rehabilitation Act. Id. If a conflict exists between the two standards, however, the ATSA standard will supersede any Rehabilitation Act requirements to the contrary. Id. Here, the Medical Guidelines establish qualification standards for individuals with pain and crystal related arthritis (gout). 2019005958 6 Regarding pain, the Agency deemed chronic or intermittent pain in the preceding six months with or without treatment, use of sedating and/or mood-altering medications, or pain that interferes with job tasks as unacceptable. Similarly, with respect to gout, the Agency finds recurrent attacks with functional limitation of the hands and/or with ambulation unacceptable. Based on Complainant’s medical documentation, the Agency found that Complainant could not meet the ATSA mandated qualifications necessary to perform the essential functions of the TSO position. Specifically, Complainant’s treatment provider asserted in FMLA documentation that Complainant was unable to perform some of his job functions due to inability to walk and severe pain while sitting. Report of Investigation (ROI) at 172. Complainant’s physician further indicated that Complainant experienced flare-ups approximately four times per month, which lasted approximately four days per episode. Id. at 173. Subsequently, in response to a Fitness for Duty Medical Questionnaire, Complainant’s treatment provider noted that Complainant was restricted in walking up to two miles during a shift and should walk as limited as possible during flare ups due to pain. Complaint File (CF) at 13. Complainant’s treatment provider further indicated that Complainant had been prescribed oxycodone. Id. at 14. Accordingly, Complainant has not shown that he was qualified for the TSO position. The discussion of “qualified” does not end at Complainant’s position of record. The term “qualified individual with a disability,” with respect to employment is defined as a disabled person who, with or without reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee currently encumbers. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance) No. 915.002 (rev. Oct. 17, 2002). Here, the Agency offered Complainant the opportunity to have a reassignment. However, Complainant declined the reassignment opportunity and indicated that he planned to apply for disability retirement. ROI at 84-85, 93-94, 175-176. Accordingly, we find that Complainant has not shown that the Agency failed to provide him with a reasonable accommodation or otherwise violated the Rehabilitation Act. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 2019005958 7 Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his disability and in reprisal for protected EEO activity, we find that management officials articulated legitimate, nondiscriminatory reasons for their actions. Moreover, Complainant failed to demonstrate that Agency officials treated Complainant differently than similarly situated individuals outside of his protected classes. Specifically, witnesses generally denied witnessing FSD pressure rating officials to lower TOPS ratings or telling Complainant that FSD pressured them to lower TOPS ratings. ROI at 52, 67, 72, 77. Although one witness testified that she was asked to revisit prior year ratings for most of her team, she denied being pressured to change ratings. Id. at 76. Therefore, we find that Complainant failed to establish that individuals outside of his protected classes were treated differently than Complainant with respect to TOPS ratings or that the Agency acted with discriminatory and retaliatory animus regarding this claim. As for Complainant’s proposed removal and placement on administrative leave, the record is clear that Agency officials acted based on the belief that Complainant was not medically qualified for the position because of restrictions and medication use. ROI at 53, 58, 83, 88, 199. While Complainant previously asserted that he was not actively taking oxycodone and his physician released him for full work duty, medical documentation that he provided at the time simply did not establish that he was fit for duty. CF at 9-16. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered explanations were a pretext for unlawful retaliation. As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. 2019005958 8 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. 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). 2019005958 9 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 May 20, 2021 Date
