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

Equal Employment Opportunity Commission

Feb 21, 2019

0120172753 (E.E.O.C. Feb. 21, 2019)

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

Mary H.,1
Complainant,

v.

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

Appeal No. 0120172753

Agency No. HS-TSA-25140-2016

DECISION

On August 7, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 19, 2017 final decision concerning her 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.

BACKGROUND

During the period at issue, Complainant worked as a Transportation Security Officer (TSO), E-
band, assigned at the Detroit Metro Wayne County International Airport in Detroit, Michigan.

On March 28, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her on the bases of disability and in reprisal for prior EEO
activity when:

1. on October 29, 2015, management issued her a Notice of Proposed Removal; and

2. on November 30, 2015, management terminated her employment with Transportation
Security Administration (TSA).

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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After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

On June 19, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. §
1614.110(b), finding no discrimination. In so finding, the Agency determined that Complainant
was disqualified from the TSO position pursuant to the Medical and Psychological Guidelines
for TSA TSOs Job Series, October 2013, Pain. The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment - Retaliation

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, even assuming Complainant established a prima facie inference of retaliatory animus with
regard to her termination, the responsible Agency officials articulated legitimate, non-
discriminatory reasons for the decision.

The description of Complainant’s TSO position includes requirements for lifting up to 70
pounds, pushing/pulling, bending/stooping, standing for up to four hours, and walking up to two
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miles. On December 21, 2014, Complainant was diagnosed has having left sacroiliac joint
dysfunction and lower lumbar pain, which her physician indicated could be aggravated by
performing TSO job tasks. She was off work with the injury from July – December 2015, and
her doctor recommended lifting restrictions, no standing for prolong periods of time, no
squatting or bending, and limitations on walking. The Agency’s Medical and Psychological
Guidelines for TSA TSOs Job Series, p. 48, states that, “chronic or intermittent pain (e.g. back or
fibromyalgia) in the past six months with or without treatment . . . or pain that interferes with job
tasks” rendered a TSO disqualified for the job.

The Deputy Assistant Federal Security Director), also Complainant’s fourth-line supervisor,
stated that he issued Complainant the October 2, 2015 Notice of Proposed Removal because she
was medically unfit for duty due to the ongoing pain from her pelvic bone injury. The Deputy
stated that the Agency’s Chief Medical Officer notified him that Complainant was disqualified
from working as a TSO due to the Agency’s written Medical Guidelines for Pain.

The October 2, 2015 Notice of Proposed Removal is consistent with the Deputy’s testimony.
The Notice indicated that Complainant has been “unable to work from July 2015 to December
2015. Your physician indicated that you suffer from severe low back pain and this pain limits
your ability to sit, stand and lift…to be in compliance, TSA must ensure that the personnel
entrusted with carrying out security procedures and duties meet TSA’s medical and physical
standards.”

The Assistant Federal Security Director for Screening, also Complainant’s fifth-line supervisor,
stated that he was the deciding official to terminate Complainant from Agency employment
“because she is medically disqualified due to her use of benzodiazepine [a pain medication] and
history of chronic pain.”

With respect to Complainant’s allegation that two TSOs were treated more favorably than her
under similar circumstances, the Deputy denied it. The Deputy stated, with respect to one of the
comparators, that he did not issue that TSO a Notice of Proposed Removal because the Chief
Medical Officer did not determine that she was medically unfit under the Medical Guidelines.

As for the other TSO, the Deputy stated that in 2015, he was her second-line supervisor. The
Deputy stated that TSO2 suffered a non-work-related knee injury. The Deputy further stated at
the time of TSO2’s injury, he was a Transportation Security Manager, “so I was not responsible
for issuing Notices of Proposed Removal.” As such, he also did not receive any determination
from the Medical Officer concerning this TSO.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful retaliation.

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Disability-Based Discrimination

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 an undue hardship. 29
C.F.R. § 1630.9.

An individual with a disability is “qualified” if he or she meets the skill, 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). In this
case, the Agency argues that Complainant is not qualified for her Transportation Security Officer
position she does not meet the position’s medical qualification requirements.

The Agency specifically asserts that Complainant cannot meet the medical requirements
mandated by the Aviation Transportation and Security Act (ATSC). 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), reprinted in 2002 U.S.C.C.A.N. 589, 590. Toward that goal, Congress created
a new Agency, the TSA, which as sweeping responsibility for airport security screening,
including setting the qualifications, conditions, and standards of employment for airport security
screeners. 49 U.S.C. § 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 daily a 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).

Nevertheless, the Commission has held that the ATSA does not divest the Commission of
jurisdiction over a complaint brought by a TSO against the Agency under the Rehabilitation Act
or other statutes the Commission enforces. Kimble v. Dep’t of Homeland Security, EEOC
Appeal No. 0120072195 (Nov. 24, 2009). Although Congress gave the Agency broad authority
to establish terms and conditions of employment for security screeners, that authority does not
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include complete exemption from § 501 Rehabilitation Act and the other employment
discrimination laws. Chapman v. Dep’t of Homeland Security, EEOC Appeal No. 0120051049
(Aug, 6, 2008), req. for recon. denied, EEOC Request No. 0520080805 (Dec. 11, 2008); Adams
v. Dep’t of Homeland Security, EEOC Appeal No. 0120054463 (Aug. 31, 2007); Getzlow v.
Dep’t of Homeland Security, EEOC Request No. 0520070839 (Oct. 12, 2007). Accordingly, the
Commission has authority under the Rehabilitation Act to hear complaints involving TSO
positions. Id.

In Getzlow, the Commission found that, although a complainant must show that he or she meets
standards established pursuant to the ATSA to be qualified under the Rehabilitation Act, not all
of these standards will conflict with the Rehabilitation Act. Getzlow, EEOC Appeal No.
0120053286. 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 wills supersede any Rehabilitation Act requirements to the
contrary. Id.

Here, the Agency noted that in Medical and Psychological Guidelines for Transportation
Security Administration Transportation Security Officer Job Series, October 2013, Pain, page 48,
it stated, “Chronic or intermittent pain (e.g., back, fibromyalgia) in the past six months with or
without treatment, use of sedating (e.g., opioids, benzodiazepines) and/or mood altering
medication, or pain that interferes with job tasks are unacceptable.” The Agency therefore
found that Complainant could not meet the ATSA mandated qualifications necessary to perform
the essential functions of TSO position. Although the Rehabilitation Act traditionally requires
that agencies using qualification standards that screen out individuals with disabilities on the
basis of disability show that the standards are job-related and consistent with business necessity,
our precedent dictates that qualification standards developed under the ATSA are not subject to
this requirement. See. id. Accordingly, in this case, Complainant must show that she can meet
the Agency’s standards concerning the medical guidelines related to pain. Complainant has not
made that showing. A review of the record clearly reflects that she suffered from significant
ongoing pain from her injury that limited her ability to meet the essential functions of her
position and the Agency’s guidelines for TSOs. Accordingly, she has not shown that she was
qualified for her TSO position.

However, the discussion of “qualified” does not end at Complainant’s position of record 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 presently encumbers. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement
Guidance – Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also
Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R.
Part 1630.2(o).

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Complainant has an evidentiary burden in such reassignment cases to prove that it is more likely
than not that there were vacancies during the relevant time period into which she could have
been reassigned. Here, the record shows that the Agency notified Complainant of the opportunity
to participate in a reassignment search. However, there is no evidence that she submitted the
requested documents (i.e. a resume) or followed up in any way with the possibility of
reassignment. As such, she has not shown that the Agency failed to provide her with a reasonable
accommodation and/or violated the Rehabilitation Act when she was terminated from her
position.

CONCLUSION

Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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
(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
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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

February 21, 2019
Date