0120042087__0120061467
02-15-2007
Richard E. Hoskins, II, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Richard E. Hoskins, II,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal Nos. 0120042087, 0120061467
Agency Nos. 030235, 05-0573
DECISION1
Complainant filed two appeals from the agency's final decisions concerning
his equal employment opportunity (EEO) complaints 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.
The appeals are deemed timely and are consolidated pursuant to 29 C.F.R. �
1614.606. For the following reasons, the Commission vacates and remands
the agency's final decisions, and affirms the agency's December 7,
2004 dismissal of claim (5).
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
complainant on the bases of disability (Depression) and reprisal for
prior EEO activity when:
(1) while interviewing for the position of Federal Air Marshal
(FAM position), advertised under vacancy announcement number
FAA-ACS-01-FAM59569M, the agency allegedly failed to provide complainant
with a valid job offer before it required him to respond to the Current
Medical Status Report forms and undergo the May 16, 2002 medical
examination (Basis: disability);
(2) complainant was not selected for the FAM position (Basis:
disability);
(3) on April 10, 2003, his request that his Security Assistant (0086)
position be reclassified to the Administrative Program series (0301)
was denied (Basis: reprisal);
(4) on April 23, 2003, his request to have his work schedule returned
to a 4-day work schedule was denied (Basis: reprisal); and
(5) in July 2003, he was constructively discharged from his position as
a Security Assistant with the Federal Air Marshal Service.2
BACKGROUND
The record reveals that following the September 11, 2001 terrorist
attacks, the Federal Aviation Administration (FAA) issued a continuously
open vacancy announcement for Civil Aviation Security Specialist (FAM),
FV-1801-G, H, or I, on September 19, 2001.3 Investigative File (IF-1),
Exhibit (Exh.) E1. The agency received 197,000 applications for the
position. Once the agency found an applicant qualified for the position,
the agency scheduled the applicant to complete: (1) an interview; (2)
a Weapons Manipulation Test; (3) a medical examination, including a
psychological test; and (4) a pre-employment drug test. 4 Id.
Complainant, a Security Assistant, Pay Band F, with the Federal Air
Marshal Service, Washington Field Office, Herndon, Virginia, applied
for the FAM position on September 19, 2001, and by undated letter, the
Manager (the Manager) for the Human Resources Management Division informed
complainant that he had been referred as a "highly qualified candidate"
for the position. IF-1, Exh. A. She scheduled him for an assessment on
May 16, 2002, at the Assessment Center in Atlantic City, New Jersey, and
provided him with the FAM Assessment Center Instructions and Checklist,
including the Current Medical Status Report forms. This form required
complainant's attending physician to provide information concerning
his medical conditions. Complainant provided information in May 2002
from Physician-A, who indicated that complainant had been treated for
depression and was taking the medication Zoloft, and Physician-B, who
also reported a diagnosis of depression and indicated that complainant
was taking the medication Resperdol. IF-1, Exh. A.
On May 16, 2002, complainant attended the interview at the Assessment
Center. Interview panels consisted of a subject matter expert, a human
resources representative, and a FAM when one was available.5 IF-1,
Exh. E13. Another human resources representative served as a scribe and
completed the interview panel sheets within 1 hour of the end of each
interview. Id. The panel members assessed the applicant's ability to
meet mandatory criteria based upon a set of questions, and an applicant
who failed in one dimension of the criteria could not proceed through the
process. Id. The Manager testified that the record did not reveal a bias
on the part of the selection panel members with respect to complainant.
IF-1, Exhibit E13. Specifically, she asserted that a "very clear parallel
[could be] drawn between the write-ups of the panel members regarding
[complainant's] lack of demonstrated knowledge in several dimension areas
addressing critical assessment criteria."6 Id. Complainant, however,
expressed numerous concerns regarding the interview process. See IF-1,
Exhibit E3; Complainant's letter, dated June 10, 2002.
By letter dated May 16, 2002, the Manager informed complainant that he
was not successful at meeting the requirements for medical certification
and the interview. IF-1, Exh. E6. Thereafter, on May 28, 2002, the
Medical Director for the Federal Air Marshal Service advised complainant
that he did not meet the medical qualification standards as a FAM due
to his depressive illness with requirement for medications restricted
by the Federal Air Marshal Service. IF-1, Exh. E7. Complainant was
removed from his medications shortly after the assessment, cleared and
recommended fit for duty by several psychiatrists. See Complainant's
letter, dated February 1, 2004.
On October 6, 2002, complainant contacted an EEO Counselor and filed a
formal EEO complaint (Complaint 1) with respect to his nonselection and
the medical inquiries and examination. IF-1, Exh. A. Thereafter, on
April 10, 2003, complainant contacted the Manager by email and requested
assistance in reclassifying his Security Assistant (0086) position to the
Administrative Program Series (0301). The two exchanged several emails
which were brought to the attention of the Special Agent in Charge (SAIC)
and two Assistants to the SAIC (ASAIC-1 and ASAIC-1). IF-2, Exh. 1.
On April 14, 2003, the SAIC reassigned complainant to the Administration
Section (Administration) and to a new first level supervisor, ASAIC-2.
Due to his reassignment, complainant's work schedule was changed from
a 4-day work week to a 5-day work week. IF-2, Exh. 7, 12. The agency
denied complainant's request to return to his previous 4-day work week.
In July 2003, complainant resigned from his position with agency,
claiming constructive discharge.
Complainant again sought EEO counseling, and on May 14, 2003, filed a
second complaint (Complaint 2) claiming reprisal as to the agency's
failure to reclassify his position and his change in work schedule.
Complainant further asserted that upon resigning, he contacted an EEO
Counselor who stated that his constructive discharge claim would be
added to his existing complaint. The agency dismissed complainant's
constructive discharge claim on December 7, 2004, finding that complainant
failed to seek EEO counseling within 45 days of the claimed incident.
29 C.F.R. �� 1614.107(a)(2), .105(a)(1). The agency specifically
determined that complainant first contacted the agency regarding said
claim on November 15, 2004.
At the conclusion of the agency's investigations of Complaints (1)
and (2), the agency provided complainant with copies of the reports of
investigation and notices of his right to request a hearing before an
EEOC Administrative Judge. In accordance with complainant's request,
the agency issued two separate final decisions on the subject complaints
pursuant to 29 C.F.R. � 1614.110(b).
FINAL AGENCY DECISIONS
With respect to Complaint 1, the agency determined that complainant
is disabled in major life activities due to his depression/anxiety.
However, it reasoned that he is not qualified for the FAM position because
of his use of mood ameliorating medications not approved by the agency.
It then assumed arguendo that complainant is a qualified individual with
a disability and determined that the Airman Second-Class certification had
been used with no exception for all applicants for the FAM position since
the formation of the position. The agency concluded that complainant
failed to produce sufficient information to establish discrimination.
With respect to Complaint 2, the agency assumed arguendo that complainant
established a prima facie case of reprisal. It, however, noted that the
Manager did not recall complainant's prior EEO activity and the other
responsible management officials were simply unaware of it. The agency
then found that it articulated legitimate nondiscriminatory reasons for
its actions. Specifically, as to claim (3), the agency sought to review
the classification issue, but other events took precedence over the
initiative, and complainant was reassigned in an effort to address "his
dissatisfaction" with his position; and (4) everyone in Administration
worked 5-day work weeks, and granting in a 4-day work schedule would
have been disruptive and inefficient to the work of the office.
CONTENTIONS ON APPEAL
On appeal, with respect to Complaint (1), complainant maintains that the
agency violated EEOC guidance by requesting medical information before he
received a valid job offer, and that he was removed from his medication
shortly after the agency's assessment and found fit for duty by several
psychiatrists. As to Complaint (2), he asserts, in relevant part, that
claim (5) should not have been dismissed as untimely, and the agency
failed to produce emails, referenced in affidavit, between the Manager
and the SAIC or ASAICs which he specifically requested throughout the
investigation.
In response to arguments made with respect to Complaint (1), the agency
asserts that complainant is not a qualified individual with a disability
because he failed to meet the Airman Second-Class certification, and
the certification is job-related and consistent with business necessity.
IF-1, E9 (citing 5 C.F.R. � 339). The agency provides no statement in
opposition to appeal with respect to Complaint (2).
ANALYSIS AND FINDINGS
The Commission's regulations and EEOC Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110) (November 9, 1999), requires agencies
to develop a complete and appropriate factual record. See 29 C.F.R. �
1614.108(b); EEO-MD-110, Chapter 6. Upon review of the present records,
the Commission finds that the records for both Complaint (1) and Complaint
(2), with the exception of that portion pertaining to claim (5), are
insufficiently developed to allow a determination on the merits of
complainant's complaints.
Complaint (1)
As an initial matter, we find that the agency failed to properly
frame complainant's claim of discrimination to include its alleged
failure to provide him with a valid job offer before it required him
to respond to the Current Medical Status Report forms and undergo the
May 16, 2002 medical examination. See Claim (1), supra. Although the
agency asserts that it did not accept this claim, the validity of
pre-employment disability-related questions and medical examinations
must always be analyzed to determine whether the agency's process is
in conformity with Rehabilitation Act obligations.7 See Enforcement
Guidance on Pre-employment Disability-Related Questions and Medical
Examinations (Oct. 10, 1995) (web version) (1995 Enforcement Guidance),
EEOC Notice No. 915.002, at 3. The agency is reminded that, under the
Rehabilitation Act, "an employer may ask disability-related questions
and require medical examinations of an applicant only after the applicant
has been given a conditional job offer." See 1995 Enforcement Guidance,
at 2; See also 29 C.F.R. � 1630.13(a); Nolan v. Department of the Army,
EEOC Appeal No. 01975113 (Nov. 1, 2000); see also McKinley v. Department
of the Army, EEOC Appeal No. 01933326 (September 8, 1994); aff'd on
reconsideration, EEOC Request No. 05950027 (December 8, 1995) (finding
disability discrimination by agency officials who made prohibited
pre-employment inquiries, but concluding that the complainant would not
have been selected absent the prohibited inquiries, and ordering the
agency to correct its pre-employment process). The Commission has stated
that "a job offer is real if the employer has evaluated all relevant
non-medical information which it reasonably could have obtained and
analyzed prior to giving the offer." 1995 Enforcement Guidance, p. 12.
However, the Commission recognizes that there are times when an employer
cannot reasonably obtain and evaluate all non-medical information at
the pre-offer stage.8 Id.
In the present case, the agency implies that complainant received a valid
job offer and that it initially requested and analyzed all non-medical
information it could reasonably obtain prior to sending complainant
to the Assessment Center to submit the Current Medical Status Report
forms and undergo the medical examination. See Agency's Opposition to
Appeal, p. 4 n. 2. However, because the agency has failed to adequately
develop the record, the Commission cannot determine whether the agency
could have reasonably obtained and evaluated complainant's non-medical
information at the pre-offer stage. Specifically, the record remains
unclear as to whether the agency had sufficient opportunity to: (1)
conduct the interview for the position; (2) assess whether complainant
would be selected based upon his performance during the interview; (3)
make complainant a conditional job offer; and (4) then request that he
submit the Current Medical Status Report forms and undergo the medical
examination. Therefore, the agency must conduct further investigation to
determine whether it was possible for complainant to be interviewed and
provided with a conditional job offer before he was required to submit
medical documentation and undergo a medical examination. Based upon the
aforesaid evidence gathered from the investigation, the agency shall
determine whether it was in violation of the Rehabilitation Act when
it required complainant to respond to the Current Medical Status Report
forms and undergo the May 16, 2002 medical examination.
With respect to claim (2), complainant claims that the agency did not
select him for the FAM position because it regarded him as disabled due to
prohibited pre-employment inquiries and medical examination, and treated
him differently than numerous others who were not required to meet the
requirements of the Airman Second-Class certification. The Commission
notes that, even if complainant establishes disability discrimination due
to the agency's improper pre-employment disability-related inquiries and
medical examination, it must separately determine whether the information
gathered as the result of the prohibited inquiries was used as part of
the agency's decision not to select complainant for the FAM position.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health for
Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999) (analyzing
a disparate treatment claim under the Rehabilitation Act), we determine
that there is insufficient evidence in the record to determine whether
complainant would have been selected for the FAM position absent the
prohibited pre-employment disability-related inquiries and medical
examination. In this respect, the agency asserted that complainant
was not selected for the position, not only due to his failure to
meet the requirements for medical certification,9 but also due to his
"lack of demonstrated knowledge in several dimension areas addressing
critical assessment criteria." The agency, however, failed to provide
affidavits from the interview panelist or a meaningful description from
the Manager regarding the reason that complainant was not selected for
the position. 10 The agency relies on 49 C.F.R. � 1520.7, which it claims
prohibits the disclosure of any selection criteria, as well as the names
and numbers of Federal Air Marshals as "sensitive security information"
under the Federal Air Marshal and Federal Security Screener program.11
49 C.F.R. �� 1520.5 and 1520.7.
The Commission acknowledges that the aforementioned regulation prohibits
the release of Federal Air Marshals' identities; however, the record
reveals that only one FAM sat on the panel. A subject matter expert and
a human resources representative were also on the interview panel and
could have provided affidavits. Moreover, the FAM's name and contact
information could have been redacted. If the agency considers the FAM
interview questions to be privileged or confidential information pursuant
to 49 C.F.R. � 1520.5(a)(2), then the agency must provide affidavits
that set forth a legitimate nondiscriminatory reason for complainant's
nonselections with sufficient clarity such that complainant has a full
and fair opportunity to demonstrate that those reasons are pretext.
See Parker v. United States Postal Service, EEOC Request No. 05900110
(April 30, 1990); Lorenzo v. Department of Defense, EEOC Request
No. 05950931 (November 6, 1997). In sum, the Complaint (1) Report of
Investigation is inadequate due to the agency's inappropriate reliance
on 49 C.F.R. � 1520.5(a)(7), and therefore the record must be further
developed as to complainant's interview.12
Complaint (2)
With respect to complainant's claim of reprisal, we find that the record
has not been adequately developed so as to ascertain whether the Manager,
SAIC, ASAIC-1, and ASAIC-2 acted in reprisal. The record reveals that the
responsible management officials deny having knowledge of complainant's
prior EEO activity. However, the Manager provided a sworn affidavit on
March 21, 2003, for Complaint (1), and complainant contacted the Manager
by e-mail and requested assistance in reclassifying his position on April
10, 2003. Moreover, a review of the record reveals that complainant
repeatedly requested that e-mails from the Manager to the SAIC and/or
ASAIC-1 and ASAIC-2, informing them of complainant's request for a
reclassification, be included in the Report of Investigation. The agency,
however, never produced the alleged e-mails. In addition, neither the
SAIC, ASAIC-1, nor ASAIC-2 adequately described how they were made aware
that complainant requested a reclassification of his position.
The agency is reminded that an adverse action need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. See Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S.____, 126 S.Ct. 2405
(2006) (finding that the anti-retaliation provision protects individuals
from a retaliatory action that a reasonable person would have found
"materially adverse," which in the retaliation context means that
the action might have deterred a reasonable person from opposing
discrimination or participating in the EEOC charge process); see also
Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4,
1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Instead, the statutory retaliation clauses prohibit any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
In the present case, reassigning complainant from one position to another
may have deterred a reasonable person from opposing discrimination or
participating in the EEO process. Therefore, the agency must further
develop the factual record to allow a fact finder to determine whether
reprisal occurred when complainant's position was not reclassified,
he was reassigned to Administration, and he was not allowed to work a
4-day week schedule.
Finally, with respect to claim (5), complainant's constructive discharge
claim, the agency dismissed the claim, finding that complainant failed to
seek EEO counseling within 45 days of the claimed incident. 29 C.F.R. ��
1614.107(a)(2), .105(a)(1). It identified complainant's first contact
regarding this claim as November 15, 2004. Complainant, however, asserted
that he informed the agency's EEO Counselor about his constructive
discharge on numerous occasions, and that she informed him that the
claim would be consolidated with Complaint (2). He further alleged
that he cannot provide documentation to prove said contact because he no
longer lives in the United States. Despite complainant's contentions,
we find that he failed to produce sufficient evidence to establish that
he contacted the EEO Counselor as he alleged. The record reflects that
his first letter to the agency regarding claim (5) is dated November 10,
2004, and nowhere therein does he make reference to his prior alleged
contact with the EEO Counselor. Moreover, he fails to provide the EEO
Counselor's name or the date(s) when he contacted her. Accordingly,
we find that the agency properly dismissed claim (5) in its December 7,
2004 dismissal.
CONCLUSION
For the foregoing reasons, the agency's final decisions as to Complaint
(1) and Complaint (2) are vacated, and this matter is remanded to the
agency for further processing in accordance with this decision and
the Order below. The agency's December 7, 2004 dismissal of claim (5)
is hereby affirmed.
ORDER
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall ensure that the investigator obtains affidavits
and/or records which may be relevant in determining the merits of
the complaint. Relevant information includes evidence pertaining to
whether the agency could have reasonably obtained and evaluated all
non-medical information at the pre-offer stage; whether complainant would
have been conditionally offered the FAM position absent the prohibited
pre-employment disability-related inquiries and medical examination; and,
if the agency finds that complainant in fact demonstrated knowledge in
all dimension areas addressing critical assessment criteria for the FAM
position, whether, under the Rehabilitation Act, the Airman Second-Class
certification, a qualification standard, screens out or tends to screen
out an individual with a disability or a class of individuals with
disabilities, on the basis of a disability. See Section on Complaint
(1), supra. Moreover, the agency shall produce any existent e-mails
from the Manager to the SAIC and/or ASAIC-1 and ASAIC-2, informing them
of complainant's request for a reclassification of his position, or
detailed sworn statements from the Manager to the SAIC and/or ASAIC-1
and ASAIC-2 regarding the content of the aforesaid e-mails, and a
description of how these officials were made aware that complainant
requested a reclassification of his position. See Section on Complaint
(2), supra.
2. The agency shall also afford complainant the opportunity to
introduce additional evidence into the record.
3. The agency shall ensure that the investigator completes a
supplemental investigation within sixty (60) calendar days of the date
this decision becomes final. The agency shall issue complainant a copy
of the new Report of Investigation, including the matters included in
the supplemental investigation. The agency shall notify complainant
that within thirty (30) calendar days of receipt of the Report of
Investigation, he has the right to request a hearing and decision from
an EEOC Administrative Judge or may request an immediate final decision
pursuant to 29 C.F.R. � 1614.110.
4. A copy of the agency's notice that transmits the investigative
file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____2-15-07______________
Date
1 Due to a new data system, these cases have been redesignated with the
above referenced appeal numbers.
2 Complainant's complaint was amended to include claim (5). The agency
dismissed claim (5) in a decision, dated December 7, 2004, which will
be discussed herein.
3 Federal Air Marshals respond to criminal incidents aboard air carriers
and other in-flight emergencies. They are authorized to carry firearms
and make arrests, while preserving the safety of aircraft, crew, and
passengers.
4 To meet the medical requirements, the agency required the applicant
to provide a medical history and undergo a medical examination that
conformed with the Second-Class Airman Medical Examination (the Airman
Second-Class certification) as set forth in 14 C.F.R. Part 67 and the
Guide for Aviation Medical Examiners. IF-1, Exh. E11. With respect to
the psychological evaluation, the agency disqualified any applicant with
an established history or clinical diagnosis of psychosis, neurosis, or
any personality or mental disorder that clearly demonstrated a potential
hazard to the performance of the position's duties or the safety of self
or others. Id. A medical waiver existed for the Airman Second-Class
certification. However, "mood ameliorating medications are not approved
[for medical waivers] by the FAA . . . because of the potential for side
effects and concerns regarding the underlying condition being treated."
IF-1, Exh. E9.
5 When a Federal Air Marshal is available, four individuals comprise
the panel.
6 The agency maintains that 49 C.F.R. � 1520.5 prohibits the disclosure
of selection criteria, as well as the names and numbers of Federal Air
Marshals as "sensitive security information" under the Federal Air Marshal
and Federal Security Screener program. 49 C.F.R. �� 1520.5 and 1520.7.
Therefore, the agency did not include this information as part of the
Investigative File.
7 Because the restrictions on employers with regard to disability-related
inquiries and medical examinations apply to all employees, and not just
to those with disabilities, it is not necessary to inquire whether the
employee is a person with a disability. See1995 Enforcement Guidance.
8 In its guidance, the Commission provides the following example,
It may be too costly for a law enforcement employer wishing to administer
a polygraph examination to administer a pre-offer examination asking
non-disability-related questions, and a post-offer examination asking
disability-related questions. In this case, the employer may be able
to demonstrate that it could not reasonably obtain and evaluate the
non-medical polygraph information at the pre-offer stage.
1995 Enforcement Guidance, at p. 12.
9 We note that the agency has also provided a legitimate nondiscriminatory
reason for not requiring the comparators identified by complainant
to complete the medical certification. Specifically, the agency's
waiver system did not apply to "mood ameliorating medications," and
the Airman Second-Class certification was not required for augmentees,
those detailed by their agencies immediately following the events of
September 11, 2001; TSA Police Officers; or Supervisory FAMs.
10 While the burden upon the agency to articulate a reason is not
an onerous one, Commission precedent holds that the agency must set
forth with sufficient clarity reasons for complainant's nonselections
such that he has a full and fair opportunity to demonstrate that those
reasons are pretext. See Parker v. United States Postal Service, infra;
Lorenzo v. Department of Defense, infra.
11 49 C.F.R. � 1520.1 "governs the maintenance, safeguarding, and
disclosure of records and information that TSA has determined to be
Sensitive Security Information, as defined in � 1520.5." 49 C.F.R. �
1520.1.
12 If the agency finds that complainant in fact demonstrated knowledge in
all dimension areas addressing critical assessment criteria for the FAM
position, the agency should also analyze whether, under the Rehabilitation
Act, the Airman Second-Class certification, a qualification standard,
screens out or tends to screen out an individual with a disability or
a class of individuals with disabilities, on the basis of a disability.
If the described individuals are being screened out, the qualifications
standard is unlawful, unless the standard is shown to be job-related and
consistent with business necessity. See 29 C.F.R. � 1630.10; See also
Bullwinkel v. Federal Aviation Administration 23 F. 3d 167 (7th Cir. 1993)
(finding that regulation providing that applicant cannot receive airman's
medical certificate if he suffers from any "other organic, functional
or structural disease, defect, or limitation" failed to support the
"no-lithium" rule adopted by the National Transportation Safety Board).
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0120042087
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
12
0120042087, 0120061467