U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021002809 Agency No. HS-TSA-01150-2019 DECISION On April 14, 2021, 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 March 23, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM), SV-1801/Band-I at the Agency’s Boston Field Office in Boston, Massachusetts. Complainant had a right finger sprain which limited her ability to lift or carry anything over 10 pounds. Complainant informed management of her condition. She also provided supporting medical documentation. Report of Investigation (ROI) at 63, 72, 104, and 115. The medical documentation reflected Complainant’s injury. The prognosis did not identify an expected duration, but indicated the outlook was “good.” 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. 2 2021002809 The documentation also indicated that Complainant could not practice defense maneuvers or block and evade blows but could otherwise meet all other performance requirements. ROI at 164-67. After reviewing the medical documentation, the Registered Nurse (RN) cleared Complainant to return to duty but, consistent with common agency procedure regarding injuries similar to Complainant’s, RN recommended that Complainant safely and effectively demonstrate manipulation of her firearm due to the nature of her injury. ROI at 75. According to the Special Agent in Charge (SAC), Complainant successfully completed the PPC. ROI at 90-1 and 93. On March 26, 2019, Complainant requested light duty, and the request was granted. On March 28, 2019, Complainant requested to assist the training department, but the request was denied. Complainant perceived the denial of that request as a denial of reasonable accommodation. ROI at 66 and 216. SAC explained that when the Supervisory Federal Air Marshal (SFAM) forwarded Complainant’s request to him, he denied it because he reviewed the request and found it was not a meaningful work assignment. According to SAC, the requested duties were not part of Complainant’s March 26, 2019, light duty request. SAC however offered Complainant an administrative duty assignment in Building 11; Complainant agreed and signed the documentation accepting the offer. ROI at 94-5. SFAM confirmed SAC’s explanation, adding that he informed Complainant that the Agency has a policy of leaving light duty personnel assigned to Building 11, to avoid scheduling conflicts. SFAM also stated that he told Complainant she needed to refuse to perform any tasks that violated her light duty restrictions, and to inform him if she was asked to perform any duties outside of her assignment. ROI at 106-07. Due to her injury, Complainant was on full restricted duty over a 22-days period. According to Complainant, she requested 114 hours of worker’s compensation for the time she was out, but she did not receive payment. ROI at 67-8. Complainant’s payment was delayed for five weeks. According to management, Complainant’s timesheet had been incorrectly coded as “non-pay,” instead of “pay status” due to a data entry error which was corrected. However, payment processing was delayed due to the Agency’s payment system maintenance. ROI at 108, 111, 117- 18, 128, and 137. Complainant was subsequently paid. ROI at 68-9 and 145-46. On May 24, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability (physical), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On or about March 19, 2019, Complainant was cleared for full duty status by the Chief Medical Officer, with the recommendation that she safely and effectively demonstrate manipulation of a firearm; 2. On March 19, 2019, management requested that Complainant complete a Fitness for Duty (FFD) Exam and take the Practical Pistol Course (PPC); 3 2021002809 3. On an unspecified date, management denied Complainant’s request for a reasonable accommodation and assigned Complainant duties that involved using her injured hand; and 4. On an unspecified date, Complainant did not receive payment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, on March 23, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Regarding claim 3, the Agency assumed, without deciding, that Complainant was a qualified individual with a disability. The Agency found that Complainant was not unlawfully denied a reasonable accommodation when she was not granted the light duty assignment of her choice because management is not required to provide Complainant with her specifically requested accommodation, simply an effective one.2 Therefore, the Agency’s conduct did not constitute a violation of the Rehabilitation Act. The Agency addressed Complainant’s remaining claims under the legal standard for harassment. The Agency ultimately determined that Complainant failed to demonstrate that the alleged examples of unwelcome conduct constituted unlawful harassment as she did not produce preponderant evidence that the alleged incidents were motivated by her membership in a protected class. Complainant also acknowledged that no comments were made regarding her protected bases.3 ROI at 65. This appeal followed. Neither Complainant nor the Agency filed contentions on appeal. 2 While Complainant may prefer a specific type of accommodation, she is not entitled to the accommodation of her choice so long as an effective accommodation is provided. Latricia P. v. Dep’t of the Army, EEOC Appeal No. 2019000803 (Aug. 19, 2020); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under Americans With Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002), at Question 9. 3 When a record is absent of race or color-based comments, references to one’s national origin or sexual orientation, sexual remarks, or other actions based on one’s protected classes, the record fails to demonstrate that the unwelcome conduct was based on a complainant’s protected classes. See Complainant v. Dep’t of Homeland Sec. , EEOC Appeal No. 0120121501, (Aug. 8, 2014). 4 2021002809 Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected her to discrimination as alleged. In making this finding, we note that Complainant has not presented any arguments on appeal that would contradict the Agency’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 5 2021002809 Any supporting documentation must be submitted together with the 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 July 28, 2022 Date
