0720100008
04-15-2010
Ricky Brooks, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Ricky Brooks,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0720100008
Hearing No. 260-2005-00049X
Agency No. TSAF-03-00375
DECISION
Following its November 5, 2009 final order, the agency filed a timely
appeal with the Commission. On appeal, the agency requests that the
Commission affirm its rejection of an EEOC Administrative Judge's
(AJ) finding of disparate treatment in the agency's compliance with a
settlement agreement. In its final action, the agency rejected the
corrective action that the AJ ordered. For the following reasons,
the Commission REVERSES the agency's final order.
BACKGROUND
The record reveals that complainant, a former Transportation Security
Screener, filed an EEO complaint in 2003, wherein he claimed that he
was discriminated against on the bases of his race (American-Indian)
and in reprisal for prior protected EEO activity regarding a memorandum
of counseling, letter of warning, demotion, and termination. The record
reveals that in 2004, complainant was diagnosed with diabetes. In July
2005, following a hearing, an AJ "verbally" found that no race or reprisal
discrimination occurred with regard to the memorandum of counseling,
letter of warning and demotion. The AJ found reprisal discrimination
as to the termination. The AJ scheduled a hearing regarding damages
for September 2005.
Thereafter, on September 27, 2005, the parties entered into a settlement
agreement which provided, in pertinent part, that complainant would be
restored to federal employment as a Transportation Security Screener,
upon passing:
A. (4) . . . Phase 2 of the TSA screener assessment including a color
vision test; a job-related medical evaluation; a drug test; a physical
ability test; and a background check. Complainant agrees that he must
pass all components of Phase 2 before being reinstated as a Transportation
Security Screener.
On October 5, 2005, complainant's physician certified that based upon his
understanding of the job requirements and standards for Transportation
Security Screeners, complainant "is capable of performing the above
listed job tasks with no risks to [him]self, coworkers, or customers."
On October 24, 2005, the agency medically disqualified complainant,
informing him by letter dated October 26, 2005. In the letter, the
agency stated, "[a]pplicants whose fasting blood sugar level is greater
than 126 are disqualified from being screeners for TSA."
Complainant submitted a letter to the agency dated November 7, 2005,
wherein he claimed that the agency was in breach of the settlement
agreement, and he requested that the agency specifically implement
its terms. Complainant stated that the agency failed to restore him
to duty and he requested specific performance or reinstatement of his
complaint for further processing.
On November 17, 2005, the Credentialing Program Office informed
complainant that he did not meet the agency's financial suitability
requirements, and thus was ineligible for hire. The agency stated that
Security Screeners cannot possess cumulative "bad debt" that exceeds
$5,000.00, any amount of debt associated with a Federal and/or State
lien, or any amount of back child support payments. As of November 2005,
complainant owed $7,710.00 in past due child support.
The agency did not issue a final action on the allegation of breach
and complainant filed an appeal with the Commission. In Brooks
v. Department of Homeland Security. EEOC Appeal No. 0120061417 (July 3,
2008), the Commission found that this matter required that a hearing
be conducted by an EEOC AJ. The Commission remanded the matter for
a hearing to determine: (1) how the Medical Guidelines' standard was
applied to disqualify complainant from the Screener position; (2) how
that standard was applied with respect to other applicant Screeners; (3)
how the agency resolves situations where a permanent Screener develops
diabetes; and (4) during settlement negotiations, what questions were
asked by complainant's counsel regarding diabetes and what responses were
given by agency counsel. The Commission stated that the AJ must issue
a decision as to whether the agency applied the Medical Guidelines'
standard in a disparate manner to complainant, whether the agency
would have resolved the situation with complainant differently had
he been employed when the developed the diabetes, and/or whether the
agency counsel accurately stated and disclosed the Medical Guidelines'
standard for individuals with diabetes to complainant's counsel.
Following the remand by the Commission, the AJ held a hearing to
address the four issues identified in the Commission's prior decision.
On September 29, 2009, the AJ issued a decision finding that the agency
treated complainant differently than other screener applicants who
failed the Phase 2 assessment. The AJ noted that unlike other screeners,
complainant was not afforded 65 days to submit sufficient documentation to
permit him to meet the Medical Guidelines' standards. The AJ stated that
applicants who were disqualified from the Transportation Security Screen
position either had an A1C level greater than 8 or a fasting blood sugar
level greater than 126; or both an A1C level greater than 8 and a fasting
blood sugar level greater than 126. The AJ found that all applicants
who failed to meet the threshold were put on hold and had 65 days to
provide supporting documentation that they met the Medical Guidelines'
standards. The AJ noted that all candidates with a history of diabetes
whose applications were put on hold had been afforded 65 days to provide
supporting documentation that there has been good control/stability for
at least three months documented by their hemoglobin and fasting blood
sugar test results, medication list, no signs or symptoms of target organ
damage and no history within the last year of episodes of ketoacidosis,
hypoglycemic coma, or hyperosmolar coma. The AJ found that complainant
was treated differently than other screener applicants who failed the
Phase 2 assessment for medical reasons because he was not given 65 days
to submit sufficient documentation to allow him to meet the Medical
Guidelines standards.
Additionally, the AJ found that the agency representative did not
purposely mislead complainant or his counsel in stating and disclosing
what she knew of the Medical Guideline's standards. The AJ found
the agency representative stated she did not believe complainant's
diabetes was a per se disqualifying illness. The AJ found the agency's
representative was not asked about the specific Medical Guideline's
standards for diabetes.
With regard to the issue of whether the agency would have resolved the
situation with complainant differently had he been employed when he
developed diabetes, the AJ noted that complainant bargained for and was
treated as an applicant for employment. The AJ found complainant would
have resolved the matter differently had complainant been employed.
The AJ found that had complainant been employed, the agency would not
have known about the diabetes unless disclosed by complainant. The AJ
noted that permanent screeners who developed diabetes at the agency's
Milwaukee Office were not required to submit medical documentation unless
they requested reasonable accommodation to perform the essential functions
of their positions.
The AJ ordered that complainant be given at least 65 days from the date
of his decision (or another mutually agreeable time period) to submit
medical documentation showing compliance with the Medical Guidelines'
standards for diabetes in effect at the time the settlement was executed.
The AJ further ordered the withdrawal of the November 17, 2005 letter
from the Credentialing Program Office informing complainant that he did
not meet the agency's financial suitability requirement. The AJ reasoned
that complainant's negative financial suitability finding was directly
related to his termination. Conditional on complainant's submission of
medical documentation within the 65 days, the AJ stated that complainant
was entitled to make whole relief.
In its final action, the agency determined that it would not implement
the AJ's decision. The agency subsequently filed an appeal with the
Commission.
On appeal, the agency contends that there is no evidence to support
the AJ's finding that it applied the Medical Guidelines' standards
disparately as to complainant. The agency maintains that the hearing
testimony showed that all applicants placed on medical hold are afforded
65 days to submit medical documentation to resolve the medical hold,
and that once an applicant submits medical documentation sufficient for a
pass/fail determination, the applicant's file is referred to a physician
who then makes a pass/fail determination based upon the submitted
documentation and the Medical Guidelines' standards. The agency states
that complainant was given 65 days to submit medical documentation to
resolve the medical hold, that he submitted the documentation within
that period, and that the agency determined that he did not meet the
Medical Guidelines standards with regard to diabetes.
The agency argues that no applicants had an opportunity to continue to
submit medical documentation after the pass/fail determination had been
made on the submitted documentation. The agency explains that once an
applicant submits sufficient documentation for the physician to make a
determination and a determination of pass or fail is made, the applicant
does not have the remainder of the 65 days to keep retesting. The agency
asserts that complainant did not refute testimony from its witnesses that
applicants are not allowed unlimited opportunities to submit medical
documentation once it has been determined that they failed the Medical
Guidelines standards. According to the agency, the AJ misinterpreted
an agency response to an interrogatory and thus erroneously concluded
that applicants who failed the Phase 2 assessment for medical reasons are
given unlimited opportunities to submit the required documentation within
65 days. The agency further contends that complainant knowingly entered
into a settlement agreement and that the agency fulfilled the agreement's
terms, and the AJ found no misrepresentation or fraud. The agency
asserts that there was no breach of the settlement agreement.
On November 24, 2009, complainant submitted a request that the
Commission require interim restoration of complainant's employment, or
in the alternative the payment of his salary, during the pendency of
the instant appeal. Complainant maintains that this matter involves
an underlying removal and therefore restoration of his employment was
clearly intended by the AJ when he ordered make whole relief.
In response to the agency's appeal, complainant asserts that the AJ's
finding of facts are based on evidence submitted at the hearing and was
not factually mistaken. Complainant notes that the AJ's finding that
complainant was treated differently when he was not given 65 days to
submit additional documentation was based on an agency response to an
interrogatory. Complainant argues that the AJ's finding of disparate
treatment is supported by testimony that complainant was treated
differently than other diabetic screeners. Complainant notes that the
agency stated that permanent screeners who develop diabetes are treated
on a case by case basis. Complainant maintains that he is a reinstated
employee who did not receive a case by case review of his condition.
On January 20, 2010, complainant filed a Complaint for Mandatory
Injunction in the United States District Court for the District of
Columbia under Case 1:10-cv-00099-EGS. Complainant seeks an order
restoring him with pay and benefits to a Transportation Security
Officer position at the General Mitchell International Airport or,
in the alternative, pay and benefits without restoration during the
pendency of the instant appeal.
The agency filed a Motion to Dismiss in the United States District Court
for the District of Columbia for lack of jurisdiction and failure to
state a claim upon which relief can be granted.
ANALYSIS and FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Commission finds that substantial evidence
in the record supports the AJ's effective finding that the agency did
not follow its Medical Guidelines' standards and we therefore find the
September 27, 2005 settlement agreement was breached. The AJ found
that applicants for screener positions had an opportunity to continue
to submit medical documentation after the pass/fail determination had
been made on the submitted medical documentation. The AJ stated that
unlike other screener applicants who failed the Phase 2 assessment,
complainant was not afforded 65 days to submit sufficient documentation
to allow him to meet the Medical Guidelines' standards. The AJ appears
to have based his finding on an agency response to an interrogatory.
The interrogatory at issue asked "How many opportunities were given
for the submission of medical documentation for the (1) 179 screener
applicants whose applications are pending and (2) 746 screener applicants
who resolved their medical hold due to diabetes?"
The agency's response was:
All candidates with a history of diabetes whose applications are put on
hold have 65 days to provide supporting documentation that there has
been good control/stability for at least 3 months documented by their
hemoglobin and fasting blood sugar test results, medication list, no signs
or symptoms of target organ damage and no history within the last year
of episodes of ketoacidosis, hypoglycemic coma, or hyperosomolar coma.
In certain cases an additional 30 days could be applied to the period
for candidates requiring specialized tests or who were experiencing
delay through VA benefits. All applicants have unlimited opportunities
to submit the required documentations within the timeframe set forth
above.
Upon review of the hearing testimony and the remainder of the evidence
in the record, we find that the AJ's finding on this issue is supported
by substantial evidence. The agency's position in its appeal is not
supported by persuasive evidence. The aforementioned interrogatory
response does not state that a pass/fail determination will be issued
once sufficient medical documentation has been provided after a hold.
Rather, the response stated that applications placed on hold have 65
days to provide supporting documentation and that, "All applicants have
unlimited opportunities to submit the required documentations within
the timeframe set forth above." We find that complainant was improperly
denied a full 65-day period to submit relevant documentation in support
of his application to be restored to employment with the agency. We find
that the agency's issuance of a fail determination under the instant
circumstances constituted a breach of the settlement agreement.
In terms of the interim relief sought by complainant in the form of
restoration of his employment or in the alternative the payment of
his salary, we observe that complainant has also filed a civil action
in the United States District Court for the District of Columbia.
Complainant is seeking the same type of relief in the civil action as he
is in the submission filed with the Commission. The regulation found at
29 C.F.R. � 1614.409 provides that the filing of a civil action "shall
terminate Commission processing of the appeal." Commission regulations
mandate dismissal of the EEO complaint under these circumstances so as to
prevent a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October
25, 1988). In light of the fact that complainant has filed a civil
action seeking the same relief in his submission here, we shall not
address his request for interim relief. Furthermore, even if there
was not a pending civil action, we would find that interim relief
is not appropriate since this matter does not involve a separation,
removal , or suspension under 29 C.F.R. � 1614.505(a)(1). We note that
while the original complaint filed did involve complainant's removal
from the agency, we note that complainant settled that issue in 2005,
and the only remaining issue concerns whether the agency complied with
the terms of the September 27, 2005 settlement agreement.
As for the November 17, 2005 letter from the Credentialing Program Office,
we find that the letter was not the subject of the remand to the AJ and
there is no need to consider such a matter at this point.
To remedy a finding of breach, the Commission may order reinstatement of
the underlying complaint, or enforcement of the agreement's terms. See 29
C.F.R. � 1614.504(c). In this case, we determine that specific enforcement
of the terms of the agreement is the appropriate remedy.
CONCLUSION
Accordingly, the agency's final order is REVERSED and the matter is
REMANDED to the agency for further processing in accordance with this
decision and the Order herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
send a letter to complainant notifying him that it will provide him
with at least 65 days to submit medical documentation showing compliance
with the Medical Guidelines' standards. If complainant passes Phase 2
of the TSA screener assessments set forth in the settlement agreement,
then the agency shall, in accordance with the settlement agreement,
reinstate complainant to the position of Transportation Security Screener.
Documentation substantiating the agency's compliance with this Order
must be sent to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
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 this
decision becoming final. 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 (K1208)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 15, 2010
__________________
Date
2
0120080346
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720100008