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

Equal Employment Opportunity Commission

Sep 6, 2018

0120162371 (E.E.O.C. Sep. 6, 2018)

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

Werner A.,1
Complainant,

v.

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

Appeal No. 0120162371

Hearing No. 480-2014-00698X

Agency No. HS-TSA-00241-2014

DECISION

On July 18, 2016, 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
June 24, 2016, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Transportation Security Officer (TSO), Series 1802, Pay Band E, Level
3, at Los Angeles International Airport. On January 2, 2014, Complainant filed an EEO complaint
in which he alleged that the Transportation Security Manager, his second-line supervisor (S2), the
Deputy Assistant Federal Security Director, his third-line supervisor (S3), and the Reasonable
Accommodation Program Manager (RAPM) on August 6, 2012, denied his request to be excused
from Travel Document Checking (TDC) duties as a reasonable accommodation. At the conclusion
of the investigation, the Agency provided Complainant with a copy of the investigative report (IR)
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).

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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Complainant requested a hearing but subsequently withdrew his request. Consequently, 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 him to discrimination as alleged.

Complainant averred that he had worked for the Agency for twelve years and has had cerebral
palsy since birth. IR 222. Complainant averred that the condition adversely affects his balance,
which makes standing and walking difficult, and that it has resulted in the entire left side of his
body being weakened, including his left arm and leg. IR 222.

The essential functions of Complainant’s TSO position included: efficiently and thoroughly
manipulate and lift baggage, containers, and other objects subject to security processing; ability to
repeatedly lift and carry items weighing up to 70 pounds; maintain the physical agility to fully
squat and bend continuously; and maintain ability to walk up to two miles and stand for prolonged
periods of time during a shift. IR 247. When asked whether and to what extent his condition
limited his ability to perform any of these functions, Complainant answered that he had difficulty
in working as a Travel Document Checker because the weakness in his left hand caused him to
drop documents, which caused delays in security line movements and aroused the anger of
passengers. He averred that he had reached an understanding with his supervisors that he could
perform all of the essential functions of his job except for the TDC function. IR 222.

Complainant averred that on April 26, 2012, he submitted a reasonable accommodation request
form to the Human Resources Office and that as an accommodation, he asked to be excused from
performing TDC duties because the weakness in his left hand would cause him to drop documents
belonging to passengers, thereby causing delays and bottlenecks in the security lines and making
passengers angry. When asked whether anyone confirmed the receipt of his April 26, 2012 request,
Complainant replied, “no.” Complainant further averred that on May 31, 2012, S2 removed him
from his shift and sent him home. He stated that S2 informed him that he could not return to work
until “some issues were sorted out,” and that he did not return to work until December 2013, over
eighteen months later. IR 223. In addition, Complainant averred that his request for reasonable
accommodation was denied on August 20, 2012, and that the reason given for the denial was as
follows:

I was told the reason my request was denied was that I could not recall the name of
the screening manager that I had spoken with about not performing the TDC duties.
Because I could not name the screening manager, HR’s position was that I did not
go through the proper channels to engage in the reasonable accommodation
process.

IR 224. When asked what discriminatory actions S2 had taken against him, Complainant
responded that S2 had asked him to obtain a doctor’s note but had sent him home before he could
provide it. IR 224. When asked what discriminatory actions S3 had taken against him,
Complainant replied that S3 did not provide him with an opportunity for limited duty. IR 224.

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When asked how granting his request would have assisted him with his medical condition,
Complainant replied that granting the request would have excused him from TDC duties, which in
turn would have protected him from customers’ anger and agitation due to his frequent dropping
of documents. He maintained that granting the request would have shielded him from that stressful
environment. He stressed that the Agency hired him with full awareness of his condition, and that
he had passed an intense physical examination to prove that he could perform the duties of his
position. IR 225.

Presumably after receiving Complainant’s April 26, 2012 request for reasonable accommodation,
S3 sent Complainant a memorandum dated May 2, 2012, in which he requested that Complainant
provide current medical documentation of his condition, noting that management did not have such
documentation on record. S3 asked Complainant to provide the following information: (1)
assessment that Complainant is fully capable of performing the essential functions of his position;
(2) the extent to which any continued impairment exists and limits the ability to perform the
activity or activities; (3) any recommended modification and how that modification will assist with
performing the essential functions of the job; and (4) if the course of treatment includes medication,
the type of medication prescribed and any typical side effects from such medication. S3 also
advised Complainant that any diagnostic statement provided by a physician had to be on the
physician’s letterhead and received no later than May 9, 2012. IR 246-47.

In response to S3’s request for documentation, Complainant provided a statement from a doctor
of osteopathic medicine (DO) dated May 9, 2012. The statement was printed on letterhead from
Kaiser Permanente. The DO reported that Complainant was under her medical care for the
previous six years, and that due to his chronic medical impairment, his ability to perform in a job
that entailed the use of fine motor skills, especially with his left hand, was difficult. The DO then
requested that Complainant be excused from serving as a TDC and stated that Complainant was
and had been able to physically perform all his other duties as a TSO for the past nine years. IR
250.

As noted above, Complainant stated that S2 sent him home from work on May 31, 2012. That
same day, S3 issued Complainant a memorandum in which he reminded Complainant of his May
2, 2012 request for medical documentation. S3 noted that he had made this request because
Complainant had declined to perform TDC functions because he had cerebral palsy, which
impaired his fine motor skills. S3 further stated:

In order for you to return back to duty, TSA requires that you submit medical
documentation from your physician that certifies that you are able to return to work
and can perform the full duties of your TSO position without any restrictions and
are currently able to maintain a fulltime schedule on a regular and recurring basis
without any restrictions. I note that the medical documentation you submitted does
not state the expected duration of your restriction. You must efficiently and
thoroughly manipulate and lift baggage, containers, and other objects subject to
security processing.
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Please provide this medical documentation from your health care provider by close
of business June 8, 2012. Please be advised that you will not be allowed to report
for duty until this matter has been resolved.

IR 229-32, 234-35, 252-53.

On June 5, 2012, Complainant’s reasonable accommodation request was forwarded to the Human
Resources Office. IR 239. In an email to Complainant dated June 28, 2012, a Human Resources
Specialist (HRS) noted that in his request for a reasonable accommodation, Complainant stated
that he “respectfully declined” to perform the TDC function because of his medical condition,
which was identified as cerebral palsy. The HRS stated that before Complainant’s request for
reasonable accommodation could be considered, the Human Resources Office would need the
following medical information from his treating physician: diagnosis of current medical condition;
statement of medical requirements and/or restrictions; a physician’s assessment as to the duration
of his restrictions; and a detailed description of the requested accommodation and how it would
assist him in performing the essential functions of his position. The HRS asked Complainant to
submit the requested documentation no later than July 13, 2012, and that his failure to do so could
result in his request for reasonable accommodation being denied. IR 239-40, 260-61. On July 13,
2012, Complainant resubmitted the medical note from his osteopathic physician dated May 9,
2012. IR 256.

In a memorandum dated August 6, 2012, the RAPM notified Complainant that his request for a
reasonable accommodation had been denied. The RAPM noted at the outset that as part of the
interactive process, the Agency could request information about his disability, the activities
limited, and the need for the accommodation, but only if the need for accommodation is not
obvious or the information already submitted is insufficient. The RAPM stated that the
information that Complainant submitted on July 12, 2012, was insufficient to render a decision on
his request, and that because Complainant had failed to provide the additional documentation
requested, she was unable to complete consideration of his request for accommodation. She
reiterated that Complainant’s request was denied for failure to provide medical documentation
sufficient to evaluate that request. IR 240, 255-56.

In his appeal brief, Complainant stated that he remained off duty for approximately eighteen
months, between May 31, 2012 through December 9, 2013. He also stated that on December 9,
2013, the Agency decided on its own that it could return him to duty, effectively granting him the
accommodation that he had been requesting for more than a year.

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
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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”).

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015). Cerebral palsy substantially impairs one’s
balance, mobility, and ability to speak, and is therefore considered a disability within the meaning
of the Rehabilitation Act. See e.g. Bynum v. Dept. of Veterans Affairs, EEOC Appeal No.
01974628 (June 1, 2000). In its final decision, the Agency accepted that Complainant was a
qualified individual with a disability after finding that, with the exception of TDC duties, he was
able to perform the essential functions of the TSO position.

We must first clarify the reason that the Agency denied Complainant’s request for a reasonable
accommodation. It was not, as Complainant averred, because he was unable to recall the name of
the screening manager he had spoken with regarding TDC duties. Rather, it was because
Complainant failed to provide the medical documentation requested by the Agency not once but
several times. On appeal, Complainant contends that since the fact that he had cerebral palsy was
obvious, S2, S3, and the RAPM should have known that it was a lifetime impairment and should
never have required him to submit medical documentation. See IR 225.

Complainant correctly points out that an employer has a duty to reasonably accommodate an
employee’s disability if the disability is obvious, which is to say, if the employer knew or
reasonably should have known that the employee was disabled. Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 135 (2d Cir. 2008).2 We agree with Complainant that cerebral palsy is an obvious
medical condition, and that it is common knowledge that it lasts a lifetime. Consequently, it was
not necessary for Complainant to provide medical documentation to prove that he had the
condition itself, any more than he would have had to provide medical documentation if he utilized
a wheelchair.

What is less than obvious, however, are the extent and duration of any restrictions caused by
cerebral palsy on Complainant’s ability to perform his essential job functions, considerations
which lie at the heart of every request for a reasonable accommodation. If an individual’s need
for reasonable accommodation is not obvious, and the person refuses to provide reasonable
documentation requested by an employer, then the individual is not entitled to the requested
accommodation. Scott v. U.S. Postal Service, EEOC Request No. 0520130084 (April 16, 2013)
(citing Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012)).

2 In Brady, a witness testified regarding a plaintiff with cerebral palsy that “just by looking at him,
you could tell that he had a disability.” 531 F.3d at 130.
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The essential functions of the TSO position included manipulating baggage, containers, and other
objects, lifting objects weighing up to seventy pounds, squatting, bending, walking up to two miles,
and standing for prolonged periods of time. By his own admission, Complainant had been
performing these functions for twelve years. IR 222. The TDC duties, which include picking up
and holding travel documents as well as prolonged standing, clearly fall within the essential job
functions of manipulating objects and standing, which Complainant had presumably been doing
throughout his tenure as a TSO. Since Complainant was being asked to be relieved of the TDC
duties, the Agency needed specific medical information regarding the extent to which his condition
affected his ability to perform those particular duties and not the various other duties that comprise
his essential job functions.

In other words, while Complainant’s overall medical condition was obvious, the impact of that
condition on his ability to perform the TDC duties was not. Given that he was performing most
of the TSO job functions for twelve years, it was not obvious to the RAPM or the other officials
why his condition required him to be excused from the TDC function. Moreover, we note
Complainant’s admission that he was asking to be relieved of TDC duties in order not to have to
deal with angry passengers whose travel documents he was dropping. IR 225. The fact that he
was having difficulty holding on to documents appears to have been a secondary consideration.

We therefore find nothing improper regarding the Agency’s requests for medical documentation
between May and July of 2012. Complainant’s failure to provide that documentation after being
asked to do so several times was a sufficient reason for the Agency to deny Complainant’s request
for a reasonable accommodation on August 6, 2012.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding no discrimination.

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.
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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 (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.
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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

September 6, 2018
Date