Request No. 0520160486
11-02-2016
Emiko S.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration (FAA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emiko S.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration (FAA)),
Agency.
Request No. 0520160486
Appeal No. 0120161130
Hearing No. 570-2013-00783X
Agency No. 2009-22760-FAA-06
DECISION ON REQUEST FOR RECONSIDERATION
On August 22, 2016, the Agency timely requested reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0120161130 (July 19, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
Complainant, who has monocular vision, applied for the position of Air Traffic Controller Specialist (ATC) at the Fort Worth Air Traffic Center. On April 28, 2008, Complainant received a tentative offer for employment pending the results of her medical evaluation and background investigation.
In May 2008, the Southwest Regional Flight Surgeon medically disqualified Complainant after it determined that she did not meet the medical standards contained in FAA Medical Standards Order 3930.3a. The Medical Order requires that all ATCs possess 20/20 distant acuity vision and 20/30 near visual acuity in each eye, as well as normal fields of vision in each eye. Complainant appealed the decision to the ATC Medical Appeals Coordinator requesting a reasonable accommodation in the form of a waiver for the vision requirement. Ultimately, on April 21, 2009, Complainant was notified that her appeal was denied because the Agency determined that hiring her as an ATC would increase the risk of operational errors and degrade public safety. The Agency also determined that there was no accommodation that would eliminate the risks attributable to Complainant's medical condition.
On September 14, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability (monocular vision) when it failed to provide her with a reasonable accommodation by denying her request for a waiver of the ATC vision Medical standards. The Agency refers to the waiver as "special consideration."
Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). AJ-1 issued a decision without a hearing finding that Complainant was not "medically qualified" to work as an ATC because she did not meet the above Agency medical safety standard. AJ-1 found that Complainant was not a qualified individual with a disability. The Agency issued a final order fully implementing AJ-1's decision. Complainant filed an appeal with this office.
In EEOC Appeal No. 0120110858 (Dec. 20, 2012), the Commission vacated the Agency's final order. The Commission found that AJ-1 erred when he issued a decision without a hearing. The Commission found that there was a genuine issue as to whether Complainant posed a direct threat to safety because it appeared that the Agency failed to conduct an individualized assessment of the alleged risk posed by Complainant and, instead, applied a blanket medical qualification. The Commission remanded the complaint to an EEOC Hearings Unit.
Thereafter, AJ-2 issued a decision without a hearing. AJ-2 referred to and cited Commission regulations on the following: regarding safety requirements that tend to screen out an individual with a disability, an employer must demonstrate that the requirement is job related and consistent with business necessity. An Agency may meet this standard by showing that the requirement, as applied to the individual, satisfies the "direct threat" analysis. 29 C.F.R. � 1630.10; 29 C.F.R. � 1630.2(r); 29 C.F.R. � 1630.15(b) & (c) App. A person is a "direct threat" if she poses a significant risk of substantial harm to the health and safety of herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. The direct threat evaluation must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. 29 C.F.R. � 1630.2(r)
AJ-2 found that if no such accommodation exists, the Agency may refuse to hire the applicant. Citing Commission case law, AJ-2 found that in order to exclude an individual on the basis of health or safety, the Agency bears the burden of showing direct threat. AJ-2 found that the Agency violated the Rehabilitation Act when it failed to demonstrate that Complainant posed a direct threat to safety when it medically disqualified her without an individualized assessment for the ATC position.
AJ-2 ordered the Agency to conduct an individualized assessment within 60 days or a mutually agreed date to determine if Complainant had the physical abilities to perform the ATC job. AJ-2 ordered that if Complainant passed the individualized assessment, the Agency reinstate her to the ATC position, or a mutually agreed comparable position with back pay from April 15, 2009, and enroll her into the ATC training academy. AJ-2 also awarded attorney fees and costs, and compensatory damages. In a final order, the Agency fully implemented AJ-2's decision.
Following AJ-2's decision, the Agency offered Complainant the opportunity to attend the ATC training academy as the individualized assessment, stating that there was no medical exam that it could rely upon to determine if Complainant could perform the essential functions of the job.2 Complainant countered that she believed that an individualized assessment would be a medical assessment that would last approximately one day.
Complainant filed an appeal. In our previous decision, we noted that while there was a disagreement between the parties on what constitutes an individualized assessment, we would not substitute our judgment regarding what an individualized assessment should entail. We found that in Nathan v. Department of Justice (FBI), EEOC Appeal No. 0720070014 (July 19, 2013), the Commission, in a situation similar to the instant case, found that the agency discriminated against the complainant when it rescinded his job offer without conducting an individualized assessment to determine if he could safely perform the functions of the offered position. We observed that in Nathan we found that the more appropriate remedy, among other things, was to simply reinstate the complainant's conditional offer of employment subject only to the normal pre-employment perquisites, e.g., a background investigation in that case.3 We concluded that AJ-2 should not have ordered the agency to conduct an individual assessment of Complainant, but should have simply directed it to reinstate Complainant's conditional offer of employment from the point that it was withdrawn. Accordingly, in the previous decision, we ordered the Agency to reinstate Complainant's conditional offer of employment as an ATC Specialist with pay back pay and benefits from the start of the training class she would have attended in July 2008, up to the date she enters on duty or the date she declines to do so.
In addition, in the previous decision we increased the award of attorney fees to $119,776.50 and the award of non-pecuniary damages to $150,000, and provided Complainant the opportunity to prove compensation for additional federal and state tax liability arising from the lump sum back pay payment.
In its request for reconsideration, the Agency argues that rather than order it to perform a proper individualized assessment, as AJ-2 did, the Commission bypassed the individualized assessment altogether and ordered it to hire Complainant as an ATC. The Agency argues that an improperly administered individualized assessment or, as occurred in this case, no individualized assessment at all cannot substitute for a finding of no direct threat to safety, and the Commission filled this evidentiary gap by ignoring it. The Agency argues that Nathan is distinguishable. It argues that the Commission should follow Floyd v. Department of Justice, EEOC Appeal No. 0120121187 (Nov. 3, 2015), where the agency withdrew its tentative job offer after finding that the complainant was medically disqualified, and on appeal the Commission remanded the case with an order to further develop the record.4
The Agency argues that the Commission's previous decision is inconsistent with its decision in EEOC Appeal No. 0120110858 where it remanded Complainant's complaint, noting that there was a genuine issue as to whether Complainant would pose a direct threat to safety because it appeared the Agency failed to conduct an individualized assessment of her.
The Agency also argues that the previous decision will have a substantial impact on the policies and operations of the Agency. The Agency argues as follows: the Commission is substituting its judgment for the Agency's Office of Aerospace Medicine to make a determination based on its Order 3930.3 on whether Complainant can perform the duties of an ATC safely despite her medical condition or limitation. It argues that not only does the previous decision affect the Agency's ability to implement the medical standards as it is charged to do for applicants, it also impacts incumbent ATCs who may no longer meet medical standards. To illustrate, the Agency writes that if a current ATC develops a condition or impairment that violates the medical standards, and the Agency fails to do an individualized assessment on direct threat, as it should do, the Commission would order the Agency to place the employee back into the position to continue to perform the function of an ATC regardless of the impact on safety.
In opposition to the appeal, Complainant argues that the Agency's argument misses the point - it is the Agency's burden to prove direct threat, and the Commission does not require a complainant to prove a negative, i.e., that she does not pose a direct threat. Complainant argues that the issue in this case is not how to address a failure to conduct an individualized assessment, the issue is whether, after ample opportunity to develop the evidence, the Agency proved its direct threat defense - which it did not. Complainant argues, in any event, that she is medically qualified to perform the ATC position and does not pose a direct threat.
Complainant argues that the previous decision does not affect the Agency's ability to implement medical standards - she is still subject to FAA's employment requirements. She argues that while the previous decision operates to prevent the Agency from medically disqualifying her for the same condition discussed in the decision, a substantial change in a complainant's existing condition or new conditions can be relied upon to deny a medical clearance. She argues that the previous decision does not usurp the Agency's ability to implement its medical standards, rather, it simply assures that the Agency cannot apply them in violation of the Rehabilitation Act. Complainant adds that she has not alleged that she is exempt from training requirements - she must complete all FAA required training including the Academy and developmental training, and meet FAA certification requirements before she can be assigned full controller duties.
Complainant also argues that while the Commission in its previous decision mentioned that she made a request to AJ-2 both for costs of $3,879.53 and additional attorney fees of $5,368 for work done from October 31, 2015 through November 18, 2015 (litigating attorney fees), the Commission did not rule on the matters. In her decision, AJ-2 awarded the above costs using the same general formula to award attorney fees - a 30% across the board deduction, which was rejected in our previous decision. In our previous decision, we noted that AJ-2 did not specifically address the additional $5,368 in fees.
ANALYSIS
After reviewing the previous decision and the entire record, the Commission finds that the Agency's request fails to meet the criteria of 29 C.F.R. � 1614.405(c).
Contrary to the Agency's argument, we find that Nathan is on point here. Many of the Agency's arguments closely resemble those that were rejected by the Commission in Nathan. In Nathan, once the Commission determined that the Agency failed to present an adequate direct threat defense, it ordered the agency in that case to reinstate the complainant's conditional offer of employment and allow the complainant the opportunity to successfully complete the background investigation and training program required of all other new hires. This is the same remedy we ordered in the instant case. We further find that Floyd is distinguishable from this case. Unlike in this case where it has been found the Agency did not conduct an individualized assessment, in Floyd we found that we were unable to determine from the record if an adequate individualized assessment was accomplished and remanded for development of the record. In sum, the Agency has not established that our prior decision in this case, by relying on Nathan, where it is clear the Commission thought through the correct remedy in situation like this case, was a clearly erroneous interpretation of law.
The Agency also argues that the Commission's previous decision is inconsistent with its decision in EEOC Appeal No. 0120110858 where it remanded Complainant's complaint, noting that there was a genuine issue as to whether Complainant would pose a direct threat to safety because it appeared the Agency failed to conduct an individualized assessment of her. The order in EEOC Appeal No. 0120110858 simply remanded the complaint back to an EEOC Hearings Unit. AJ-2 found that the Agency violated the Rehabilitation Act when it failed to demonstrate that Complainant posed a direct threat to safety when it medically disqualified her without an individualized assessment for the ATC position. The Agency fully implemented this decision, and Nathan applies.
We also find that the Agency has not shown the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. As argued by Complainant, our previous decision does not usurp the Agency's ability to implement its medical standards. Rather, it simply assures that the Agency cannot apply them in violation of the Rehabilitation Act. Further, in terms of the operations of the Agency, as argued by Complainant, she has not alleged she is exempt from training requirements - she must complete all FAA required training including the Academy and developmental training, and meet FAA certification requirements before she can be assigned full controller duties. The Agency itself has argued it can assess Complainant's ability to perform as an ATC based on her performance in the Academy.
Accordingly, the Agency's request for reconsideration is denied.
Finally, on our own motion, we note that in our previous decision we inadvertently failed to address the attorney fees of $5,368 for work done from October 31, 2015 through November 18, 2015, for work litigating fees and costs of $3,879.53. Upon review of the record, we find that the additional attorney fees were reasonable. We also find that, with the exception of $270.75 in costs for sending or receiving facsimiles and copying which are not supported by adequate documentation, the costs were appropriate, and we award them.
The Commission finds that the Agency's request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The Commission, on its own motion, reconsiders attorney fees and costs which we inadvertently failed to address in our previous decision. The decision in EEOC Appeal No. 0120161130 remains the Commission's decision, as modified herein. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency shall take the following actions within the specified number of days of the date this decision is issued:
1. Within fifteen days (15) calendar days, reinstate Complainant's conditional offer of employment as an ATC Specialist. Complainant will have thirty (30) calendar days from the date of the offer of reinstatement to accept or reject the Agency's offer. If she does not respond within thirty (30) calendar days, the Agency will consider her to have declined the Agency's the conditional offer of reinstatement as an ATC Specialist. If Complainant accepts the Agency's conditional offer of employment, the Agency will enroll Complainant into the next ATC training class (FAA Academy), but in any case will enroll her no later than before January 26, 2017, Complainant's 31st birthday.5
2. Within sixty (60) calendar days, the Agency shall pay Complainant $150,000 for non-pecuniary compensatory damages.
3. Within sixty (60) calendar days, the Agency shall pay Complainant's attorney for attorneys' fees in the amount of $125,144.50 and $3,608.78 in costs.
4. Within one-hundred and twenty (120) calendar days, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Back pay and benefits shall be calculated from the start of the training class that Complainant would have attended in July 2008, up to the date on which Complainant enters on duty, or to the date on which she declines to enter on duty, whichever date is first.
Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. Complainant may petition the Commission for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer referenced in the statement entitled "Implementation of the Commission's Decision."
5. After the relevant back pay calculations have been made, the Agency shall request that Complainant submit her claim for compensation for all additional federal and state income tax liability. The Agency shall afford Complainant sixty (60) calendar days to submit her claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on the Complainant. The calculation of additional tax liability must be based on the taxes Complainant would have paid had she received the back pay in the form of regular salary during the back pay period, versus the additional taxes she paid due to receiving the back pay lump sum award from 2008. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision becomes final in accordance with 29 C.F.R. � 1614.110(b).
6. Within one hundred and twenty (120) calendar days, the Agency shall provide EEO training on the topic of rights and responsibilities under the Rehabilitation Act to Agency officials identified as being involved in the reasonable accommodation and medical evaluation processes. The Agency shall take appropriate steps to ensure that like violations do not occur in the future.
7. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
8. Take any necessary precautions to ensure that Complainant is not subjected to retaliation for filing, prosecuting, and obtaining a favorable result on the instant complaint. To that end, the Agency shall, to the extent possible, maintain confidentiality with regard to these proceedings.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G1016)
The Agency is ordered to post at its Office of Aerospace Medicine in Washington, D.C. and the Aerospace Medical Certification Division in Oklahoma City, Oklahoma copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
November 2, 2016
__________________
Date
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 The Agency added that should Complainant pass the ATC training academy, she must then successfully complete a rigorous, demanding training program which lasts years before she can be considered a fully certified ATC.
3 In Nathan, the agency rescinded the complainant's conditional offer of employment as an FBI Special Agent because of his disability of monocular vision. In the decision, we cited the testimony of the Program Manager for the FBI's Training Academy's Law Enforcement Training for Safety and Survival Program which the agency used to try to prove direct threat. Further, we ordered that the agency enroll Complainant in an upcoming New Agent training class. This indicates that upon being hired Nathan, like Complainant, would be required to attend a training academy.
4 The Agency writes that in Dong F. v. Department of the Interior (National Park Service), EEOC Appeal No. 0120140109 (June 3, 2016), the Commission ordered the agency to do an individualized assessment to determine if the Complainant, a Law Enforcement Park Ranger, could safely perform his job. A review of Dong. F. reveals that the Commission ordered the complainant be reinstated and did not order an individualized assessment. It appears the Agency was referring to Floyd.
5 According to Complainant, under 5 U.S.C. � 3307(b), the Agency mandates a maximum age of 31 for entry into the FAA Academy and appointment to an ATC position.
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