0120051049
08-07-2008
Thomas A. Chapman, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Thomas A. Chapman,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200510491
Agency No. 7033056
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of � 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et
seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. In accordance with the decision and order below,
the Commission REVERSES the agency's final order and REMANDS the case
for further processing in accordance with the attached order.
BACKGROUND
In the wake of the tragic events of September 11, 2001, Congress passed
the Aviation and Transportation Security Act (ATSA), to foster national
security and the protection of our nation's transportation systems.
The ATSA created the Transportation Security Administration (TSA).
One of the responsibilities of TSA is overseeing security screening
of passengers and baggage at airports. 49 U.S.C. � 44935. The ATSA
also contains detailed provisions mandating hiring qualifications for
Transportation Security Screeners. Among other relevant provisions,
section 44935(f)(1)(B)(iii) of the ATSA requires that TSA security
screeners "be able to hear and respond to the spoken voice and to
audible alarms generated by screening equipment in an active checkpoint
environment."
In August 2002, complainant contacted TSA, through its internet
website, to apply for a position as a Transportation Security Screener.
The agency thereafter invited him to Oakridge, Tennessee, to begin
the application process. On August 12, 2002, complainant traveled to
Oakridge to participate in what the agency terms an "assessment process."
The record shows that the agency had established a "two phase" process to
expedite the hiring of security screeners. Phase I, which was entirely
computer based, is described in the Report of Investigation (ROI) as
follows:
This assessment battery measured critical and job-related aptitudes,
knowledge and skills (i.e. competencies). These included an ability
to recognize and distinguish shapes and images on the screen, as well
as skills for the job (customer service orientation, work values,
integrity/responsibility). In addition, the English proficiency test
measured reading, writing and listening . . . . Only those applicants
who passed Phase I moved to the next phase of assessments. Those who
failed were notified by a human resources representative immediately
after taking the test.
ROI, Tab F4 at 5. Phase II of the assessment involved an interview,
physical and medical tests (including a hearing test) and a background
check. ROI, Tab F4 at 6.
According to complainant, before he began the Phase I computer-based
assessment, he informed two people in charge of the assessment process
that he had a hearing impairment and that he did not have the hearing
aids he normally wore because they were being "updated." As a result,
he asked for a reasonable accommodation to facilitate his test taking.
As complainant relates it:
[I] asked for an accommodation to have the testing administrator speak
loudly so that I could hear the parameters of the test and/or personal
assistance to guide me through the process. I was immediately informed
that my request was denied because there were too many applicants taking
the assessment and I could not receive personal attention of the testing
administration. In fact one of the administrators rudely stated "We do
not have any doctors down here."
ROI, Tab F2 at 1. Complainant participated in Phase I of the assessment
but was informed that he had not passed. For this reason, he was not
invited to participate in Phase II and did not undergo any of the physical
or medical tests.2
Thereafter, complainant filed a formal EEO complaint on March 7, 2003,
alleging that the agency discriminated against him on the bases of
disability (bilateral hearing loss) and age (50) when he was denied a
reasonable accommodation for his disability (bilateral hearing loss)
during Phase I of the hiring assessment process for the position of
Transportation Security Screener at Tri-Cities Regional Airport in
Tennessee. He also alleged that he was discriminated against on the
bases of disability and age when he was not selected for the position
of Transportation Security Screener.
At the conclusion of the investigation, complainant was provided
a copy of the investigative report. He requested a hearing and the
matter was assigned to an EEOC Administrative Judge (AJ). Thereafter,
the agency filed a motion for findings and conclusions without a
hearing, urging dismissal of complainant's complaint on the merits.
In a separate filing, the agency supplemented its motion with arguments
urging dismissal of the complaint on the ground that it fails to state
a claim, contending, inter alia, that complainant's disability claims
are not covered by the Rehabilitation Act. The AJ issued a decision
granting the agency's motions, crediting its failure to state a claim
argument, as well as its alternative arguments on the merits of the
complainant's claims. The AJ dismissed complainant's disability claims
pursuant to 29 C.F.R. �� 1614.109(b) and 1614.107(a)(1), ruling that
those claims are not cognizable under the Rehabilitation Act because that
Act has been superseded by the ATSA, Public Law 107-71, 115 Stat. 597
(November 19, 2001). The agency's final order implemented the AJ's
decision. Complainant subsequently filed the instant appeal.
FINDINGS AND ANALYSIS
The AJ's Dismissal For Failure To State A Claim
A complaint may be dismissed for failure to state a claim if the
allegations of the complaint do not "plausibly suggest[ ]" that the
pleader is entitled to relief. Bell Atlantic. Corp. v. Twombly, 127
S.Ct. 1955, at 1966 (2007). Applying this standard, we conclude that
the complaint stated a claim.
In dismissing complainant's claim, the AJ stated:
The language of the [ATSA] plainly states that "notwithstanding any
provision of law" the Agency's hiring criteria must be met by the screener
. . . . The Equal Employment Opportunity Commission finds that Congress'
inclusion of the "notwithstanding any provision of law" signals Congress'
clear intent that such hiring qualifications are not subject to the
type of legal challenge asserted in the instant case pursuant to the
Rehabilitation Act.
AJ Decision at 5 (citing 49 U.S.C.A. � 44935(f)). The Commission finds
that the AJ erred in interpreting the ATSA to have such a broad preemptive
effect on Rehabilitation Act claims brought by screeners. Whether a
complaint by a screener (or applicant for the screener position) states a
claim under the Rehabilitation Act must be determined on a case-by-case
basis, in light of the specific allegations made, and will depend on
whether there is any conflict between the ATSA-mandated qualifications
and complainant's Rehabilitation Act claim. See Getzlow v. Department
of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007).
In this case, complainant has not challenged an ATSA-mandated standard.
Rather, he has alleged that he is a qualified individual with a disability
that could have participated in the application process if he had been
provided a reasonable accommodation, as was requested. Further, it appears
that complainant is alleging that he could have met the ATSA-mandated
hearing standard and performed the screener job without an accommodation
that would have negated the standard. That is adequate to state a claim.
The AJ's Summary Dismissal On The Merits
As an alternative ground for disposing of the instant complaint, the AJ
granted the agency's motion for a decision without a hearing. In so
doing, she effectively decided complainant's ADEA and Rehabilitation
Act claims on the merits.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. If a case can
only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate. Moreover, the evidence of
the non-moving party must be believed at the summary judgment stage, and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon
a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003). An AJ should not rule in favor of one
party without holding a hearing unless he or she ensures that the party
opposing the ruling is given (1) ample notice of the proposal to issue
a decision without a hearing, (2) a comprehensive statement of the
allegedly undisputed material facts, (3) the opportunity to respond
to such a statement, and (4) the chance to engage in discovery before
responding, if necessary. According to the Supreme Court, Rule 56 itself
precludes summary judgment "where the [party opposing summary judgment]
has not had the opportunity to discover information that is essential
to his opposition." Anderson, 477 U.S. at 250.
The ADEA Claim
We note that complainant's statement on appeal does not specifically
challenge the AJ's summary judgment ruling on his ADEA claim. We further
note that the record reflects undisputed evidence indicating that a
number of those hired into the screener position were either the same
age as complainant or older. As a result, we affirm the agency's final
action on the ADEA claim.
The Rehabilitation Act Claims
The AJ concluded that complainant was not an individual with a
disability and granted the agency summary judgment on that claim.
Relying on Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the
AJ reasoned that because complainant's hearing loss could be fully
corrected through the use of mitigating measures, i.e., hearing aids,
he is not substantially limited in the major life activity of hearing.
The AJ erred in granting summary judgment on this basis. The question of
whether an individual is substantially limited in a major life activity
is an issue of fact. Hughes v. United States Postal Service, EEOC Appeal
No. 01996035 (September 26, 2002). There is evidence in the record which
could support a finding that complainant, even with the assistance of
hearing aids, is substantially limited in his ability to hear.
There is evidence that complainant experiences tinnitus or ringing
in the ears. The record also contains a letter dated April 12, 2004,
signed by an audiologist who examined complainant, which states in part:
Mr. Thomas Chapman has a permanent, bilateral moderate to severe
sensorineural hearing loss. He will experience extreme difficulty hearing
in situations where the level of background noise is equal to or greater
than the level of the signal (i.e. speech or conversation). Mr. Chapman
should be able to participate without difficulty in quiet settings such
as one on one conversation. Please face Mr. Chapman when instructing
him with a particular task. By looking straight at him, he is able to
read lips in addition to hearing you through his hearing aids . . . .
Exhibit C-3 to complainant's opposition to agency's summary judgment
motion.
In a supplemental submission to the AJ, complainant relied on and adopted
the audiologist's description of his condition and its functional impact
as follows:
In sentence two of that letter [the audiologist] states quote, He will
experience extreme difficulty hearing in situations where the level of
background is equal to or greater than the level of the signal (speech
or conversation. [Sic] This establishes the fact that even with hearing
aids I can experience extreme difficulty in hearing. The letter goes on
to say I can communicate with instruction and able [sic] to read lips
in a high noise environment where hearing aid signals are impaired.
If you need to confer with my Audio-logist [sic] please call [number].
July 20, 2004 letter from complainant to EEOC AJ.
The record contains three other audiologist letters. A letter by the
same audiologist quoted above, dated March 29, 2004, states that "[d]ue
to Mr. Chapman's hearing deficit his bilateral hearing aids are needed
in order for everyday communication. Mr. Chapman is unable to wear
headphones with the use of his hearing aids due to acoustic feedback
(loud squealing noise). Mr. Chapman does need some sort of assistance
while taking this examination." An audiologist letter dated April 11,
2000, states that complainant's "exam today was within normal limits.
The audiogram obtained today revealed moderate to moderately severe
slopping sensory neural hearing loss with diminished discriminations
. . . ." Finally, an audiologist letter dated September 13, 2002, states
that, based on a complete hearing evaluation, "Mr. Chapman has a mild
to profound sensorineural hearing loss bilaterally. Speech reception
thresholds were in good agreement with the three frequency pure-tone
averages bilaterally . . . . Comparing today's test results to his last
evaluation that I have on record from April 11, 2000, by Sharon Riddle
indicates that his hearing status has remained stable." Moreover,
the record contains an affidavit by complainant dated September 28,
2003, in which complainant states that he was "able to perform all the
essential functions of the position, because [his] hearing aids adjusted
[his] hearing levels to a normal status."
The AJ concluded that the above evidence did not create a genuine issue
of fact regarding whether complainant's hearing impairment substantially
limited his hearing. We conclude that the AJ erred in her reasoning
on this point. It is not necessarily the case, as the AJ apparently
concluded, that complainant's admission that his hearing aids adjusted
his hearing levels to a normal status is dispositive. When looking
at the facts in a light most favorable to complainant, and drawing all
reasonable inferences in his favor, the record supports a factual finding
that complainant's hearing is "stable" and "within normal limits" when
wearing appropriate hearing aids, but that even with his hearing aids he
nevertheless experiences "extreme difficulty hearing in situations where
the level of background noise is equal to or greater than the level of
the signal (i.e. speech or conversation)," and in such situations he must
read lips in addition to using his hearing aids. Thus, we conclude that,
for purposes of summary judgment, a reasonable fact finder could find
complainant to be an individual with a disability.
We now turn to the question of whether the complainant is a "qualified"
individual with a disability under the Rehabilitation Act and under
the ATSA. To be a qualified individual with a disability, and thus
entitled to the protections of the Rehabilitation Act, an individual must
be able to perform the essential functions of the job with or without a
reasonable accommodation, as well as have the required skills, experience,
education, licenses, etc. See 29 C.F.R. � 1630.2(m); 29 C.F.R. pt. 1630
app. � 1630.2(m). For TSA security screeners, the determination as
to whether an individual or applicant is qualified will also include
an assessment of whether the individual can meet the ATSA-mandated
qualification standards, with or without an accommodation.
Under the Rehabilitation Act, it is unlawful to discriminate against
a qualified individual with a disability in regard to job application
procedures, including by not making a reasonable accommodation to
the known physical or mental limitations of a qualified applicant. 29
C.F.R. �� 1630.4(a) & 1630.9; 29 C.F.R. � 1614.203(b) (ADA regulations
apply to Rehabilitation Act claims). There is no question that in flatly
rejecting complainant's request for accommodation for the testing and
hiring process, based on what was known to the agency at the time, the
agency was risking a potential violation of the Rehabilitation Act.
See Reasonable Accommodation Guidance, at Q&A 6 ("failure by the
employer to initiate or participate in an informal dialogue with the
individual after receiving a request for reasonable accommodation could
result in liability for failure to provide a reasonable accommodation").
The Commission is deeply troubled by the agency's failures in this regard
and we remind the agency of its obligation to be a model employer with
regard to disability matters. See 29 C.F.R. � 1614.203(a).
It is not necessary to address at this time whether complainant was
unlawfully denied a reasonable accommodation during the application
process. Ultimately, an employer can only be held liable for failing
to provide a reasonable accommodation to an individual with a disability
under the Rehabilitation Act if the complainant is, in fact, "qualified."
See Getzlow, EEOC Appeal No. 0120053286 at 7-9. (security screener
applicant not qualified because her bi-polar disorder prevented her from
working in active checkpoint environment.). Here, it is unclear to the
Commission from its review of the record whether complainant was qualified
for the TSA screener position as measured by the qualification standard
set forth in section 44935(f)(l)(B)(iii) of the ATSA. Specifically,
while the Commission recognizes that the record contains numerous
audiologist reports as well as the ATSA-mandated hearing requirements,
the Commission's ability to interpret the reports as applied to the ATSA
standards is limited.
Based on the above, we reverse and remand this case for a determination
on the issue of whether complainant was qualified for the position in
accordance with the Order below.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
This case is remanded to the Hearings Unit of the appropriate EEOC
field office for processing. This case shall be handled on remand by
a Supervisory Administrative Judge (SAJ) within the appropriate office.
The SAJ is directed to make a determination regarding whether complainant
is qualified for the TSA screener position, based on the ATSA-mandated
standards. The SAJ is further directed to supplement the existing
record, if necessary, to make this determination. Such supplementation
may include discovery and/or a hearing.
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office the request for a hearing within fifteen (15) calendar days
of the date this decision becomes final. The agency shall also submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
August 7, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The agency has repeatedly asserted that complainant "failed the hearing
test." See Motions For Findings And Conclusions Without A Hearing And For
Stay of Proceedings at 3; see also Agency's Brief In Opposition To Appeal
at 4. However, this assertion is plainly not supported by the factual
record. The agency acknowledged, in the ROI, that screener applicants
were given a hearing examination during Phase II of the assessment
process. See ROI, Tab F-4 at 6. It is undisputed that complainant did
not participate in Phase II of that process.
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01A51049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507