EEOC Appeal No. 0720160019
01-09-2018
Iona A. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iona A.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720160019
Hearing No. 443-2011-00086X
Agency No. HSTSA007152010
DECISION
Following its November 21, 2013, final order, the Agency filed a timely appeal pursuant to 29 C.F.R. � 1614.403(a). Complainant also filed an appeal.2 On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
Whether the AJ should have dismissed Complainant's complaint for failure to state a claim.
Whether the AJ's findings of fact on liability and relief are supported by substantial evidence. ;
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for a Transportation Security Officer (TSO) at the Agency's Central Iowa Airport in Cedar Rapids, Iowa. Complainant applied for the position and satisfied the first seven stages of its application process, and was offered a conditional offer of employment.
In order to work as a TSO, a candidate must be able to perform certain duties and meet job-related medical standards that are assessed in a pre-employment medical evaluation. On or about December 29, 2009, Complainant completed a Medical Questionnaire in which she reported that in 2001, she had arthroscopic surgery on her knee to remove some synovial lining; that she sees a Rheumatologist for arthritis; that she was treated for sleep apnea in 2006 and sleeps with a Continuous Positive Airway Pressure (CPAP) machine; that she visits a doctor for high blood-pressure and diabetes; and that she takes Enbrel and Plaquenil prescription medications.
In the Medical History section, Complainant further indicated that she experienced high blood-pressure, back pain, joint pain and swelling, arthritis, rheumatism, bursitis or grout, skin problems, and apnea. She indicated that she was able to sit continuously without taking a break for a total of at least 5-6 hours in an 8-hour work day, and could stand and walk continuously for at least 3-4 hours without taking a break in an 8-hour work day.
With regard to lifting, Complainant indicated she has no lifting restrictions, that she lifts 30-50 pounds frequently and occasionally lifts 70 pounds. She certified she was able to pick up and carry objects weighing 30-70 pounds at least 25 feet. Complainant asserted that she frequently climbs, stoops, bends, squats, and kneels.
On December 30, 2009, Complainant completed the TSO Pre-Employment Medial Evaluation Form and underwent a physical examination by an affiliate doctor who was tasked with determining whether Complainant satisfied the medical qualifications for the TSO position. Complainant successfully completed all tests and screenings, including the Palmer sensation test to look for any decreased sensation in either hand. Complainant was rated "normal" in all areas. The medical examiner did note that Complainant was taking Enbrel for her arthritis and was "doing well" but did not confirm the diagnosis of Rheumatoid Arthritis. (Exhibit A-2 at p. 11).
Following an examination, the examiner's findings are referred to the Agency for a determination as to whether the candidate is medically qualified pursuant to the Agency's Medical Guidelines. A nurse reviewed the documentation and determined that Complainant's application required further evaluation before it could be determined whether Complainant passed or failed the examination. On or around January 19, 2010, the TSA Medical Review Director (Director) reviewed the documentation and determined that Complainant failed the medical evaluation, and that no further evaluation was necessary. On January 21, 2010, the Director informed Complainant that she was medically disqualified from the TSO position.
On June 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (arthritis) when, on January 21, 2010, she was medically disqualified for the position of Transportation Security Officer.
Following 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). Complainant timely requested a hearing. The AJ held a hearing on May 23, 2012, and issued a decision in favor of the Agency on June 27, 2013.
In his decision, the AJ found Complainant had satisfied the requirements for a prima facie case because she was regarded as an individual with a disability when she was found medically disqualified due to her arthritic condition. Specifically, the AJ found that the Agency believed Complainant was unable to perform the essential functions of a TSO which required her to lift heavy baggage and manipulate garments in order to rule out the presence of detonators and wires.
The AJ further found that the Agency disqualified her due to her two-decade history of Rheumatoid Arthritis3, and treatment at the maximal medical level, as well as due to her admission that she still has "flare-ups." The Director testified that he was concerned about Complainant's ability to squeeze or manipulate items such as teddy bears, which may have concealed detonators or wires in them. He further stated that, in his over 30 years of clinical experience, he had never seen someone like Complainant who did not show some disease progression to the hands. The Director also testified that Complainant's performance on a specific day was only a snapshot of her abilities, and was not necessarily indicative of ability to perform full duty consistently. The Director stated that he was concerned about Complainant's ability to lift and push checked baggage, stand and walk continuously, and to bend and conduct pat down searches of passengers.
In his decision, the AJ noted the following preface to the Medical Guidelines:
The purpose of this manual is to aid the examining physician in making judgments concerning the suitability of individuals for the Transportation Security Screener (TSS) position in the Transportation Security Administration (TSA)......
In using the guidelines, the physician must compare the individual's health status with the level of severity of the disease/condition listed in this manual. The examining physician has the responsibility for using his\her medical expertise and experience to evaluate the individual's medical history and to determine the level of severity of any existing or past disease/condition. Examining physicians must determine whether an individual meets the requirements outlined in the medical guidelines. Further, the physicians must use their medical judgment in combination with the medical guidelines in this determination. When an individual's symptoms are less severe than those indicated as disqualifying in the guidelines, the disease/condition should not be considered disqualifying. Individuals who are found to have a medical condition that would prohibit or restrict their ability to perform the essential functions of the TSS position, and therefore unable to meet the medical guidelines are not acceptable.....
FURTHER EVALUATION
An individual may present with the current or past disease/condition that requires further evaluation (e.g., review of individual's medical records). In these instances, the examining physician is responsible for evaluating the disease/condition through a review of the medical records, coupled with the present medical history and physical examination. The examining physician should advise the individuals that it is their responsibility to have the medical records forwarded to the examining physician or obtain further evaluation through an outside medical provider/specialist. Additional evaluations by an outside medical provider/specialist are at the individual's expense and results should be forwarded to the TSA medical provider in writing. These results should be reviewed by the medical review officer who will make the final decision on whether the individual meets the medical guidelines. Guidelines for receipt of medical records or additional evaluations from the candidate will be established by TSA. The medical review officer must use his/her medical expertise in collaboration with the individual's medical provider or outside specialist to determine whether the person can meet the TSA medical guidelines.
(Emphasis added.) See Exhibit A-1.
The most applicable medical standard which the Agency applied to Complainant states:
Rheumatoid Arthritis
Accept with confirmed diagnosis of disease without significant impairment.
Evaluate with confirmed diagnosis, with or without treatment, and with mild symptoms (e.g., discomfort or limited mobility of one or more joints), but with functional capacity adequate to conduct normal job activities.
Disqualify with active disease under chronic treatment with functional capacity limited with muscle atrophy, moderate and severe pain, and multiple joint involvement.
(Exhibit A-2 at p. 39).
Complainant testified that she was in fact able to perform the essential functions of the job. She stated that she has no lifting restrictions, and that she passed the Palmar Sensation Test, as well as the Orthopedic/Flexibility/Range of Motion screening. Complainant testified that she surpassed the Guidelines and that neither her medical examination nor medical history provided any evidence of a diminished functional capacity. Complainant did acknowledge that, prior to her surgery and Enbrel injections, she was in some pain; however, she has not had serious issues or frequent flare ups since beginning that treatment.
Assuming that Complainant had a confirmed case of Rheumatoid Arthritis, the AJ examined the Agency's Guidelines under such a diagnosis and determined that Complainant fell into the "accept" category because she had a confirmed diagnosis with no significant impairment. The AJ found Complainant never required an accommodation and only suffered minor pain and stiffness in her joints.
In contrast, the Agency determined that Complainant fell into the "evaluate" prong of the Guidelines, and was subject to further review. The Agency argued that the subsequent reviews are subjected to a more scrutinizing review, and that the standard used is less severe than the standard listed in the "disqualification" prong. However, the AJ was not persuaded by this argument, finding instead that the evidence revealed that the initial reviewer determined Complainant should be in the "evaluate" prong, but that the Director determined Complainant fell into the "disqualified" prong and that further evaluation was not necessary.
Even assuming Complainant did belong in the "evaluate" prong, the AJ found that the Agency's disqualification failed by its own terms. Specifically, the Guidelines state, "When the individuals' symptoms are less severe than those indicated as disqualifying in the Guidelines, the disease/condition should not be considered disqualifying." Exhibit A-1 at p. 6. Further, when one falls into the "evaluate" prong, the decision whether the candidate can meet the guidelines should be made between the medical review officer and the individuals outside medical specialist. The AJ found that the Guidelines do not permit the Agency's physician to make a determination that is at odds with the Guidelines, as occurred in the instant case.
Specifically, the Guidelines for disqualification require "active disease under chronic treatment with functional capacity limited with muscle atrophy, moderate and severe pain and multiple joint involvement." Exhibit A-2 at p. 39. However, the AJ found no evidence that established Complainant suffered from any limited functional capacity, muscle atrophy, or moderate and severe pain. Rather the AJ found the record revealed the opposite and, as such, Complainant had established she satisfied that requisite skill, experience, education, and job-related requirements of the position. The AJ further found that Complainant had established she could perform the essential functions of the job without accommodation, and that the Agency's fears about Complainant's ability to manipulate and squeeze items were unfounded.
The AJ additionally found that Complainant was not challenging the Agency's Guidelines; she asserted, rather, that she met the Guidelines but was disqualified anyway. Although the Agency argued that Complainant could be rejected because she was a direct threat, the AJ was not persuaded in light of the lack of evidence in the record that Complainant was unable to perform the essential functions of the job. The AJ found no evidence that Complainant was unable to perform the essential functions of the job because she passed the Palmer Sensation screening and range of motion examinations and there was no evidence of any functional incapacity. Indeed, the AJ found that Complainant carries heavy items in her current job such as bags of animal feed and also moves heavy freight. She cuts, lifts, and carries firewood at her home, carries heavy items, and loads and unloads trailers. The AJ accordingly found that Complainant had established she was subjected to disability discrimination when she was medically disqualified.
As relief, the AJ found that Complainant should be retroactively reinstated to the position of TSO, and paid back pay from January 21, 2010, the date the AJ found Complainant would have been hired by, absent discrimination. The AJ also awarded Complainant $5,000.00 in non-pecuniary compensatory damages and reasonable attorney fees in the amount of $6,740.00
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged, and filed the instant appeal. Complainant also appealed the Agency's final order.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ erred in failing to dismiss the complaint because the Aviation Transportation Security Act (ATSA), 49 U.S.C. � 44935 (2006), preempts the Rehabilitation Act. The Agency further argues that, even assuming that the ATSA does not preempt the Rehabilitation Act, the AJ should have dismissed the complaint pursuant to the Commission's findings in Getzlow v. Dept. of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), because the complaint represented a challenge to the Agency's Medical Guidelines, which is not permissible under the ATSA. Rather, the Agency asserts that the AJ erroneously determined that Complainant did not challenge the Medical Guidelines, but surpassed them, and was not hired because of her disability. Nevertheless, the Agency argues that the AJ is prohibited from challenging the applicability and interpretation of the Medical Guidelines under Getzlow.
The Agency maintains that it is required to ensure that all TSOs meet specific qualifications for the job and that it determined that Complainant's arthritis rendered her unfit according to the Medical Guidelines. It contends that the ATSA prohibits the Commission from second-guessing the Agency's determination as to whether a TSO meets the qualification standard. Indeed, it contends that Complainant's arthritis renders her unqualified for the job because, despite maximum medical treatment, she still experiences flare ups and pain in her hands and knees. The Agency posits that Complainant's condition resulted in a finding of "evaluate" section of the guidelines, but that after review, the Director concluded that additional information was not necessary. The Agency argues that the AJ's interpretation of the Guidelines was too strict and that he substituted his opinion instead of deferring to the physician's expertise and experience. The Agency notes that Complainant did not introduce expert testimony interpreting the application of the Guidelines to her condition.
The Agency also objected to the AJ's remedies. It contends that the AJ's calculation of back pay was improper, as even if Complainant passed the medical examination, she would still need to undergo an interview and only then would she be placed into the available pool of employees. The Agency maintains that back pay should begin the day the first female employee was hired out of the pool resulting from this vacancy announcement at this facility. Finally, the Agency asserts that the AJ erred in finding any support for a $5,000.00 compensatory damage award.
Complainant filed a brief in response to the Agency's appeal, as well as identical brief in support of her own appeal. She contends that the ATSA does not preempt the Rehabilitation Act. Rather, she urges that the Commission properly conducts a case-by-case analysis as to whether there is a conflict between the Rehabilitation Act and ATSA mandated Guidelines. However, here, Complainant contends that there is no conflict; rather, the Director in this case ignored the Agency's Medical Guidelines, as the evidence revealed that Complainant can do each of the tasks required of a TSO. Complainant also asserts that the application process contained in the record establishes that, once an individual passes the medical examination, they are extended an offer of employment. Complainant argues that both the backpay calculation and compensatory damage award are correct and supported by the evidence.
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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
As an initial matter, we find that the complaint presents a claim of disparate treatment. Complainant has alleged that she was discriminated against when she was disqualified for a TSO position based on her disability.
The Agency's primary argument in the appeal is that the complaint fails to state a claim because the ATSA preempts the Rehabilitation Act.4 Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001, in order 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 1.49 (2001), reprinted in 2002 U.S.C.C.A.N. 589, 590. Toward that goal, Congress created a new Agency, the TSA, with 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 that:
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.
The Agency also argued that the AJ erred when he determined that Complainant was not challenging the Agency's Medical Guidelines and argued that the Complainant's challenge to the Agency's interpretation of its Medical Guidelines was improper under Getzlow. We disagree, and find Complainant is not challenging the validity of a Medical Guideline, nor has the Agency been asked to show that the Guideline is job related and consistent with business necessity.
Rather, Complainant is challenging the Agency's finding that she was not qualified under the Guidelines. Specifically, it found that Complainant should be disqualified because she had arthritis for over twenty years and still experienced flare ups despite the maximum medical therapy. As a TSO, Complainant must meet the requirements set forth in the Aviation and Transportation Security Act (ATSA). However, there is insufficient evidence in the record to support the Agency's finding that she does not meet the requirements of the job. Rather, the AJ's finding that she meets (or exceeds) the Agency's Medical Guidelines is supported by substantial evidence. As we noted in Complainant v. Dept' of Homeland Security, EEOC Appeal No. 0710130017 (June 30, 2015):
Conflict between the ATSA and the Rehabilitation Act cannot be a moving target. The conflict must be gleaned from the explicit words of the statute or the guidelines... [An] Agency cannot simply disqualify [a] Complainant from the TSO position based solely on the existence of her condition. Rather, the Agency must perform an individualized assessment of Complainant's condition and the impact it has upon her ability to perform the essential functions of the TSO position in order to determine if Complainant is a qualified individual with a disability. [cite]
Here, we find the AJ's finding that Complainant was qualified for the position supported by substantial evidence. The AJ found that the record established she could perform the essential functions of the job and there was no basis for her disqualification under the Agency's Medical Guidelines. Even if she initially fell into the "evaluate" prong of the Guidelines, substantial evidence supports the AJ's finding that she did not fall into the "disqualify" prong, because there is no evidence she suffered from limited functional capacity, muscle atrophy, or moderate to severe pain. Simply, the Agency did not establish with persuasive evidence that Complainant's arthritis disqualified her under its Medical Guidelines. Rather, the preponderance of the evidence in the record revealed that Complainant met the Guidelines by its own terms.
To the extent that the Director believed her condition might result in injury to herself or the traveling public, we find the Agency failed to perform an individualized assessment. A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. � 1630.2(r). The "direct threat" evaluation must be based on an individualized assessment of the individual's present ability to perform the essential functions of the job. 29 C.F.R. � 1630.2(r); 29 C.F.R. 1630 App. 1630.15(b) and (c); Nathan v. Dep't of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). Id.
Here, the Agency contends that Complainant cannot safely perform the TSO duties because she lacks sensation necessary to check for explosives in carry-on luggage, and that lifting baggage will cause injury to her knees. To exclude an individual on the basis of future possible injury, the Agency must show there is a significant risk by establishing a high probability of substantial harm. A speculative or remote risk is insufficient. The Agency must show more than that an individual with a disability stands some slightly increased risk of harm. The burden of showing a significant risk is on the Agency. Selix v. U.S. Postal Serv., EEOC Appeal No. 01970153 (Mar. 16, 2000).
Moreover, such a finding must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur, and 4) the imminence of the potential harm. 29 C.F.R. � 1630.2(r); Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of Rhode Is., Dep't. of Mental Health Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. v. Echazabal, supra.
According to the record, the Agency physician did not contact Complainant's physician or seek any further information regarding the frequency of Complainant's flare ups, or the progression of her arthritis. Even on appeal, the Agency fails to address the factors comprising an individualized assessment. Therefore, we find that substantial evidence of record supports the AJ's conclusion that the Agency violated the Rehabilitation Act when it disqualified Complainant for the TSO position.
Remedies
With regard to remedies, we find Complainant is entitled to make whole relief. Relying on the Director's declaration attached to the Agency's Motion for Summary Judgment, the AJ found that following the successful completion of the medical examination, candidates are extended an offer. AJD at p. 7. An Agency witness testified at the hearing that successful candidates are only placed into an available pool of employees after successful completion of the medical assessment; they are not automatically hired. Given the prior statement, which was cited by the Agency in its own Motion for Summary Judgment, we are not persuaded by the Agency's subsequent testimony. Accordingly, the AJ's finding that Complainant should be paid back pay starting from January 10, 2010 is supported by the record. Moreover, we further find that the compensatory damages award of $5,000.00 is supported by the record.5
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and REMAND the complaint for processing in accordance with the ORDER below.
ORDER
Within one hundred and twenty (120) days of the issuance of this decision, the Agency shall:
1. Offer Complainant a Transportation Security Officer position, or a substantially equivalent position, at the Central Iowa Airport, Cedar Rapids, Iowa retroactive to January 10, 2010. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position. If Complainant should decline the Agency's offer of a position, the date of her rejection shall be the end date for any back pay due Complainant.
2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. 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 Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Pay Complainant compensatory damages in the amount of $5,000.
4. Pay Attorney's fees as provided in the AJ's decision, and incurred in this appeal, in accordance with the paragraph below entitled "Attorney's Fees."
5. Provide eight (8) hours of EEO training to the Director. The training shall address management responsibilities with respect to eliminating discrimination in the Federal workforce with an emphasis on the Rehabilitation Act.
6. Consider taking appropriate disciplinary action against the Director. 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 Director has left the Agency's employ, the Agency shall furnish documentation of his departure date.
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 decision regarding compensatory damages, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Cedar Rapids, Iowa facility 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
01/09/18
__________________
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 Complainant's related appeal (No. 012014502) was administratively closed. However, the arguments in her brief are considered in this Decision.
3 The AJ found that the Director was not aware that Complainant had suffered from arthritis for more than two decades at the time he examined her application.
4 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). While Congress gave the Agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from � 501 of the 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. den'd, 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 Appeal No. 0120053286 (June 26, 2007), req. for recon. den'd, EEOC Request No. 0520070839 (Oct 12, 2007). Accordingly, the Commission has authority to hear complaints under the Rehabilitation Act involving TSO positions. Id.[0]
5 Complainant did not appeal the amount of the compensatory damages award.
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