0120070755
07-10-2009
William R. Freese, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
William R. Freese,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070755
Hearing No. 5-00357X-TGH
Agency No. HS04TSA001359
DECISION
On November 21, 2006, complainant filed an appeal from the agency's
October 26, 2006 final order 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
On November 6, 2003, complainant applied for a position as a
Transportation Security Screener with the Transportation Security
Administration (TSA) at the agency's Hartsfield-Jackson International
Airport.
The security screener positions are governed by the Aviation and
Transportation Security Act (ATSA), which contains detailed provisions
mandating hiring qualifications for security screeners, including the
essential functions of the position. The ATSA provides, in pertinent
part:
(A) QUALIFICATIONS.--Within 30 days after the date of enactment of
the Aviation and Transportation Security Act, the Under Secretary
shall establish qualification standards for individuals to be hired
by the United States as security screening personnel. Notwithstanding
any provision of law, those standards shall require, at a minimum,
an individual ...
(iii) to meet, at a minimum, the requirements set forth in subsection
(f); ...
(f) EMPLOYMENT STANDARDS FOR SCREENING PERSONNEL.--
(1) SCREENER REQUIREMENTS.-- Notwithstanding any provision of law,
an individual may not be deployed as a security screener unless that
individual meets the following requirements: ...
(C) The individual shall be able to read, speak, and write English well
enough to -
(i) carry out written and oral instructions regarding the proper
performance of screening duties;
(ii) read English language identification media, credentials, airline
tickets, and labels on items normally encountered in the screening
process;
(iii) provide direction to and understand and answer questions from
English-speaking individuals undergoing screening; and
(iv) write incident reports and statements and log entries into security
records in the English language.
See 49 U.S.C. �44935(f) (emphasis added).
Complainant, who has dyslexia, often has trouble reading, particularly
dense paragraphs that are single-spaced. As a result, upon applying for
the position complainant immediately requested a reasonable accommodation
for his disability in the form of an oral examination during Phase I of
the application process.
When complainant did not hear back from the agency regarding his
reasonable accommodation, he sought the assistance of an EEO Counselor
on March 16, 2004. On March 25, 2004, the agency offered complainant
time-and-a-half on two sections of the test. Complainant informed the
agency that the accommodation was not sufficient, and again requested
an oral examination.
On July 5, 2004, after the agency provided no further response to
complainant's inquiries, complainant filed a formal complaint of
discrimination on the basis of disability (dyslexia) when, on or about
June 24, 2004, he was denied a reasonable accommodation (in the form of
an oral examination) for a pre-employment examination for the position
of Transportation Security Screener. Further, complainant alleged that
the agency violated the Rehabilitation Act when it failed to process
his requests for reasonable accommodation.
On October 1, 2004, during the investigation, the agency finally explained
that an oral examination was not appropriate because the Security Screener
position had a reading qualification standard.
On October 8, 2004, after consulting with a reading expert, complainant
contacted the agency with an alternate accommodation of oral instructions
and the necessary reading portion of the text in a specific font size,
double-spaced. The agency never responded to complainant's request.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing, and on October 20, 2005, the hearing was held. During the
hearing complainant was able to read from a legal brief that was
double-spaced with fourteen-point font.
On September 6, 2006, the AJ issued a decision. The AJ found that, while
complainant did a "credible job" of reading the legal brief, complainant
failed to establish that he could read the type of material a Security
Screener is required to read. The AJ further found that complainant is
not qualified to be a Security Screener and, as a result, the agency is
not required to reasonably accommodate him during the application process.
On October 26, 2006, the agency issued a final order adopting the AJ's
decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Under the Commission's regulations, an 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 an undue hardship.
29 C.F.R. � 1630.9. Reasonable accommodation includes modifications
to the manner in which a position is customarily performed in order to
enable a qualified individual with a disability to perform the essential
job functions. Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(October 17, 2002) (Enforcement Guidance). The Rehabilitation Act of
1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. � 1630. In order to establish that complainant was denied
a reasonable accommodation, complainant must show that: (1) he is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2)
he is a qualified individual with a disability pursuant to 29 C.F. R. �
1630.2(m); and (3) the agency failed to provide a reasonable accommodation
absent undue hardship. See Enforcement Guidance.
When the individual is not an employee, but an applicant for employment,
the Commission's policy states:
An employer must provide a reasonable accommodation to a qualified
applicant with a disability that will enable the individual to have
an equal opportunity to participate in the application process and to
be considered for a job (unless it can show undue hardship). Thus,
individuals with disabilities who meet initial requirements to be
considered for a job should not be excluded from the application process
because the employer speculates, based on a request for a reasonable
accommodation for the application process, that it will be unable to
provide the individual with reasonable accommodation to perform the job.
Enforcement Guidance at Q. 13.
The critical point made by the Commission in the Enforcement Guidance
is that an employer should assess the need for accommodation for
the application process separately from any accommodation that may be
needed to perform the job. Where no clear evidence exists showing that an
individual is unable to perform the job, an employer must accommodate the
person in the application phase. For TSA, this determination will also
include an assessment of whether the individual can meet the ATSA-mandated
qualification standards, with or without an accommodation. TSA must
therefore provide a qualified individual with a disability with a
reasonable accommodation for the application process so long as such
accommodation would not negate an ATSA-mandated standard and no undue
hardship exists. See Getzlow v. Department of Homeland Security (TSA),
EEOC Appeal No. 0120053286 (June 26, 2007).
Here, we will assume for the sake of argument that complainant is an
individual with a disability. Next, complainant must establish that
he is a "qualified individual with a disability," which is defined
as an individual with a disability who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. 29 C.F.R. � 1630.2(m).
The record establishes that the ability to read certain documents,
such as identification media, credentials, airline tickets, and labels
on items normally encountered in the screening process, is a standard
that is mandated by the ATSA, and as a result, is an essential function
of the Security Screener position.
Here, complainant's medical documentation indicates that he has "severe
deficits in auditory and visual processing" which negatively impacts his
reading and math skills. Complainant demonstrated during the hearing
that he was capable of reading a legal brief that was double-spaced in
fourteen-point font. However, a legal brief is not the type of material
that a Security Screener would be required to read. Had complainant
demonstrated that he was able to read a boarding pass or a driver's
license, where the font is much smaller than fourteen-point and not
double-spaced, he may have been able to establish that he could perform
the essential functions of the position. However, complainant did not
offer such a demonstration during the trial. The AJ found that the
travel documentation Security Screeners are required to read are not
double-spaced, and have blocks of densely typed words that are juxtaposed
against each other. We note that the burden remains on complainant to
establish that he can perform the essential functions of the position,
and not on the agency to establish that complainant cannot perform the
essential functions of the position. We find that complainant failed
to establish that he can perform to the ATSA-mandated standard, which
is an essential function of the position. Therefore, complainant failed
to establish that he is qualified for the position of Security Screener.
The analysis now turns to whether the agency is required to accommodate
an individual during the application process if that individual is not
qualified for the position. The Commission has issued decisions in
cases very similar to this one. For example, in Getzlow, supra, the
Commission held that because there was clear evidence that complainant
would not be able to meet one or more of the ATSA-mandated standards,
complainant was not qualified for the Security Screener position and,
as a result, the agency had no duty to accommodate complainant during
the application process. Getzlow, EEOC Appeal No. 0120053286. In this
case, because complainant failed to establish that he was qualified for
the Security Screener position, we find that the agency had no duty to
accommodate complainant during the application process.
Complainant further alleges that the agency violated the Rehabilitation
Act when it failed to process complainant's numerous requests for
reasonable accommodation. The Commission previously has held that
an agency cannot be held liable solely for failure to engage in the
interactive process, but can be found liable if the failure to engage
in the interactive process resulted in the agency's failure to provide
reasonable accommodation. Broussard v. United States Postal Service,
EEOC Appeal No. 01997106 (September 13, 2002), req. to recon. den.,
EEOC Request No. 05A30114 (January 9, 2003). The sole purpose of the
interactive process is to facilitate the identification of an appropriate
reasonable accommodation. Broussard, EEOC Request No. 05A30114.
The agency's failure to engage in this process does not give rise to a
separate cause of action because the interactive process is not an end
in itself. Id. Rather, the alleged denial of reasonable accommodation
gives rise to a cause of action, and in order to prevail on such a claim,
complainant must prove, by a preponderance of the evidence, that he
is a qualified individual with a disability within the meaning of the
Rehabilitation Act. See Bielfelt v. United States Postal Service, EEOC
No. Appeal 01A10475 (June 19, 2002). We have already established that
complainant is not a qualified individual with a disability as defined by
the Rehabilitation Act. Therefore, the agency cannot be held liable for
failure to process complainant's request for reasonable accommodation.
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, because a preponderance of the evidence of record does not
establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 10, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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