Ted L.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Mar 8, 2018

0120180514 (E.E.O.C. Mar. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ted L.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120180514

Hearing No. 480-2013-00078X

Agency No. HS-TSA-21221-2012

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated October 20, 2017, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, filed on March 11, 2012, Complainant, a Transportation Security Officer
(TSO), SV-1802-E Band, at Ontario International Airport, Ontario, California, alleged
discrimination based on race (African-American), disability (asthma), and in reprisal for prior
EEO activity when he was subjected to harassment in that:

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.
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(1) On April 9, 2011, a Transportation Security Manager (M1) gave him a letter of
reprimand for tardiness, disregarding his invocation of FMLA (Family Medical Leave
Act) for asthma attacks;

(2) On July 31, 2011, another Transportation Security Manager (M2) gave him a 3-day
suspension for tardiness;

(3) On January 14, 2012, Assistant Federal Security Director – Screening (M3) gave him
a 7-day suspension for failure to follow proper leave procedures;

(4) Between April 9, 2011, and February 15, 2012, he was accused of faking his
disability; and

(5) On February 29, 2012, he was issued a notice of proposed removal.

The record indicates that Complainant was subsequently issued a notice of removal on June 14,
2012. Upon completion of the investigation of the complaint, Complainant requested a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). On February
19, 2013, the Agency filed a Motion for Summary Judgment and Complainant filed a response to
the Agency’s motion on April 17, 2013. On September 13, 2017, the AJ issued a decision
without holding a hearing, finding no discrimination. The Agency’s final order implemented the
AJ’s decision. Complainant appeals the Agency’s final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ incorporated the statement of facts of the Agency’s Motion for
Summary Judgment by reference. Assuming arguendo that Complainant had established a prima
facie case of discrimination, the AJ determined that the Agency articulated legitimate,
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nondiscriminatory reasons for its actions. Complainant indicated that he was diagnosed with
asthma when he was 14 years old and the Agency was made aware of this condition through his
yearly requests under the FMLA beginning on November 17, 2008. The last FMLA approval
was January 11, 2012. Complainant acknowledged that his disability did not affect his
performance of his job.

Regarding claim (1), M1 indicated that M1 issued Complainant the letter of reprimand because
he arrived late for work five times on February 15 and 19, March 7, 8, and 12, 2011, without
prior approval in violation of its policy. Management indicated that under its absences policy, its
employees were required to call in at least sixty minutes prior to their scheduled shift start time if
they would not make it to work; and that FMLA did not give employees the ability to violate
management directives. Complainant acknowledged that he knew of the Agency’s call in policy,
and, in his letter dated February 19, 2011, Complainant admitted that he was tardy on February
19, 2011.

Regarding claim (2), M2 indicated that on July 31, 2011, she issued Complainant the 3-day
suspension from August 1 - 5, 2011, for his tardiness. Specifically, M2 stated that on June 14,
2011, Complainant came to work fifteen minutes late without prior approval; and on July 5 and
17, 2011, he failed to contact the Ontario Coordination Center (OCC) at least sixty minutes prior
to his scheduled start time. In his letter dated June 25, 2011, Complainant acknowledged that he
was late on June 14, 2011, because he forgot he was scheduled to be at the administrative
building for image testing.

Regarding (3), M3 indicated that on January 14, 2012, she issued Complainant the 7-day
suspension from January 15 – 21, 2012, for his failure to follow proper leave procedures.
Specifically, M3 stated that on October 17, 2011, Complainant called the OCC at 0425 to report
he was calling out sick for his scheduled start time of 0415 hours.

Regarding claim (4), Complainant indicated that on September 13, 2011, an Administrative
Officer made a statement to him that his asthma was not that serious and that he was faking. The
Administrative Officer denied making that statement. Complainant also indicated that M3 told
him about her daughter’s asthma conditions and she helped her daughter to get her day started
earlier to prevent her daughter from having an asthma attack. M3 acknowledged that she
mentioned to Complainant about her daughter’s asthma conditions but denied that she compared
Complainant’s conditions to those of her daughter.

Regarding (5), a Transportation Security Manager (M4) indicated that on February 29, 2012, he
issued Complainant a notice of proposed removal due to his being medically disqualified to
perform the essential functions of his position. Specifically, M4 indicated that on November 10,
2011, Complainant submitted a Certificate of Health Care Provider for Employee’s Serious
Health Condition from his physician to support his request under the FMLA. Therein, the
physician stated that it was expected Complainant would incur asthma attacks approximately 1 to
2 times per week for a 1 to 7-day duration. Based on management’s concern regarding
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Complainant’s fitness for duty, management requested a review of his medical documentation by
the Department of Health and Human Services, Federal Occupational Health Service (FOHS).

On January 31, 2012, Complainant underwent a physical examination with pulmonary function
testing conducted at the FOHS in Los Angeles. Based on the examination, on February 1, 2012,
the FOHS Occupational Medicine Consultant (OMC) provided management with his
determination that Complainant was not medically qualified for his TSO position. Therein, the
OMC indicated that according to the Agency’s Medical Guidelines for TSOs, Complainant was
disqualified with presence of asthma requiring “constant medication without normal ventilatory
function (FEV1 (Forced Expiratory Volume in one second, i.e., the maximum amount of air
expired in one second) less than 75% of predicted value) as measured by ventilator studies.”
Specifically, the OMC stated that Complainant was on several medications daily for his asthma
condition and his testing showed his FEV1 of 71% which was less than the required cutoff value
of 75%. The OMC also stated that Complainant was missing 3 – 7 days of work each month
because of his condition. Despite the Agency’s requests, Complainant did not provide contrary
medical documentation that he indeed met the normal ventilator function required by the
Agency’s Medical Guidelines.

Meanwhile, the record indicates that on January 17, 2012, the Agency’s Reasonable
Accommodation Program received Complainant’s request for reasonable accommodation
concerning his asthma condition. Specifically, Complainant asked for a flexible work schedule
that would allow him to report to work after his asthma episodes had subsided and to be allowed
to invoke FMLA leave for time missed due to his asthma without receiving discipline. On
March 27, 2012, the Agency’s Reasonable Accommodation Program denied Complainant’s
reasonable accommodation request because he did not meet statutory and/or medical
requirements of his position. Complainant then requested reconsideration of the denial. The
Reasonable Accommodation Program denied the request because Complainant failed to submit
any updated medical documentation establishing that he met the Agency’s Medical Guidelines
for TSOs. We note that Complainant’s reasonable accommodation request is not at issue in this
complaint.

On June 14, 2012, M3, concurring with M4’s proposal, issued a notice of decision to remove
Complainant from his TSO position because he failed to meet the Agency’s Medical Guidelines
for TSOs.

On appeal, Complainant, disputing the Agency’s Medical Guidelines, indicates that according to
the Agency’s current 2016 Medical Guidelines for TSOs, the breathing requirements for TSOs
with asthma is now at 60% or greater, and not 75% or greater. Complainant nevertheless admits
that the Agency’s Medical Guidelines for TSOs at the relevant time indicated the breathing
requirements for TSOs with asthma was 75% or greater.

Based on the foregoing, we find that Complainant failed to show or provide any medical
documentation showing that he met the Agency’s Medical Guidelines for his TSO position.
Thus, we find that Complainant failed to establish that he was a qualified individual with a
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disability. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120152233 (Dec.
19, 2017), request for reconsideration pending, EEOC Request No. 0520180210; Myles v Dep’t.
of Homeland Sec., EEOC Appeal No. 0120092707 (Sept. 13, 2011); see also, Getzlow v. Dep’t.
of Homeland Sec., EEOC Appeal No. 0120053286 (June 26, 2007), req. for recon. denied,
EEOC Request No. 0520070839 (Oct. 12, 2007).

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Regarding his claim
of harassment, we find that Complainant failed to establish he was subjected to a hostile work
environment or that the severity of the alleged “faking” comment was sufficiently severe so as to
rise to the level of a hostile work environment.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
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(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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

March 8, 2018
Date