U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marielle L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0720140024 Hearing No. 520-2011-00166X Agency No. HS-TSA-00400-2010 DECISION Following its April 14, 2014 final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission). On appeal, the Agency requests that the Commission affirm its rejection of a portion of the relief ordered by an EEOC Administrative Judge (AJ) following a 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. Complainant also submitted an appeal of the Agency's decision modifying the AJ's decision. The Commission accepts the appeals pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND During the relevant time, Complainant worked as a Transportation Security Officer, employed by the Agency's Transportation Security Agency (TSA) at the John F. Kennedy International Airport in Jamaica, New York. Believing that she was subjected to unlawful discrimination Complainant filed two EEO complaints, on April 27, 2010 and June 1, 2011, respectively. In the complaints, Complainant alleged discrimination when: (1) Based on disability, on November 17, 2009, she was denied a reasonable accommodation and issued an immediate application for retirement. (2) Based on disability and reprisal for prior EEO activity, Complainant was (a) on February 14, 2011, ordered by an Assistant Federal Security Director (AFSD) to request leave without pay (LWOP) or be placed on AWOL (Absent Without Leave) (b) on an unspecified date, a proposal to terminate her was issued because she was physically unable to perform her duties, and (c) on July 18, 2011, she was terminated. At the conclusion of the investigations into her complaints, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing in each case. In March 2012, the AJ issued an order consolidating the two cases. A hearing on liability was held over three days in October 2012 and June 2013. On August 15, 2013, the AJ issued an Interim Decision finding Complainant proved that the Agency subjected her to disability discrimination. Specifically, the AJ found that although Complainant was not qualified as a TSO when she could no longer lift 70 pounds, and the Agency's decision to terminate her as a TSO was non-discriminatory, the Agency was required to seek a reassignment for Complainant. Its failure to do so was a violation of the Rehabilitation Act. With respect to the basis of retaliation, the AJ found no discrimination. In her Interim Decision, the AJ ordered the Agency to offer Complainant available reassignment positions within the parameters set by Complainant and provide back pay from the effective date of her termination until the date her reassignment is effectuated or refused. Additionally, the Agency was ordered to "change its policy to reflect that it is obligated to offer a reasonable accommodation in the form of reassignment, when appropriate, to screeners." Thereafter, on December 12, 2013, a one-day hearing on damages was held. In a decision, issued on March 6, 2014, the AJ awarded Complainant $30,000 in compensatory damages, $32,402.30 in attorney's fees, and $2,550.25 in costs. The Agency issued a Final Order and notice of appeal, modifying the AJ's decision with respect to remedies. While noting that it agreed with the finding of discrimination, the Agency stated that the AJ's order to "change [the Agency's] Component-wide policy to reflect that TSA is obligated to offer a reasonable accommodation in the form of reassignment, when appropriate, to TSAs" was "outside the scope of the AJ's authority". The Agency believes that the EEOC exceeded its authority when it "order[ed] a national policy change of this nature." Complainant also filed an appeal, contending that the AJ was within her authority to order the policy change. ANALYSIS AND FINDINGS The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). In this case, the Agency maintained that Complainant was not qualified for a TSO position because she cannot lift 70 pounds, a requirement it contends is mandated by the Aviation and Transportation Security Act (ATSA). 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 Security2 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 49 U.S.C. § 44935 note, 115 Stat, at 620. Apart from basic mental and educational requirements, the statute requires that security screeners "possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor stills." 49 U.S.C. § 44935(f)(1)(B). These skills include the ability to "efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing." 49 U.S.C. § 44935(e)(2)(A)(iv). The ATSA also provides that "at a minimum [a security screener must] meet such other qualifications as the Under Secretary may establish." 49 U.S.C. § 44935(e)(2)(A). Pursuant to this authority, TSA has established that all security screeners must be able to handle, lift, and carry items weighing up to 70 pounds. Yeager v. Chertoff, No. CV06-00740, 2006 WL 4673439 (W.D. Wash., Nov. 13, 2006). TSA has explained that a security screener who is "medically restricted from lifting or carrying baggage weighing up to 70 pounds is not qualified to perform the essential function of performing security screening of property and baggage at our nation's airports. It would be unsafe to the person, to the traveling public, and to other employees to put a person with such a medical restriction in this position." Yeager, 2006 WL 4673439 (quoting Declaration of Elizabeth B. Kolmstetter, former TSA Deputy Assistant Administrator, Office of Human Capital). The ATSA also mandates an annual evaluation of each security screener to ensure continued qualification for the job. 49 U.S.C. § 44935(f)(5). The statute states that "[a]n individual employed as a security screener may not continue to be employed in that capacity unless the evaluation demonstrates that the individual ... continues to meet all qualifications and standards required to perform a screening function, ... [and] demonstrates the ... skills necessary to ... effectively perform [such] screening functions." Id. § 44935(f)(5). Complainant acknowledged that she was not capable of meeting the 70 lbs. lifting standard. The AJ properly found, and the parties do not dispute, that Complainant is not qualified as a TSO. See Wilkins v. Dep't of Homeland Security, EEOC Appeal No. 0120121285 (Feb. 27, 2013), req. for recons. denied EEOC Request No. 0520130335 (Aug. 5, 2013) (complainant who could only lift up to 25 pounds not qualified for TSO position because she could meet ATSA-mandated standard of lifting 70 pounds); Houser v. Dep't of Homeland Security, EEOC Appeal No. 0120110386 (June 16, 2011), req. for recons. den., EEOC Request No. 0520110548 (Oct. 7, 2011) (complainant not qualified for TSO position because she could not meet the ATSA-mandated standard of repeatedly carrying and lifting 70 pounds). The AJ determined, however, that the Agency erred when its inquiry ceased at that point. The Agency was required to consider the availability of a reassignment as an accommodation. Its failure to do so was a violation of the Rehabilitation Act. The Agency does not dispute this finding of discrimination, nor does it challenge the AJ's order that Complainant be offered a reassignment with an award of back pay, compensatory damages, attorney's fees and costs. The Commission has discretion to review only the issues specifically raised on appeal. Since neither party raised the finding of discrimination or the damages award, we shall not review these matters on appeal. On appeal, however, the Agency argues, that AJ exceeded her authority in requiring it to "change its national policy on TSO personnel and the applicability of the Rehabilitation Act to those employees." According to the Agency, such a change "attempts to nullify the 'notwithstanding' provision contained in 49 U.S.C. § 44935." The Commission disagrees. 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 (Jun. 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. The Agency must comply with the requirements of the Rehabilitation Act where there is no conflict between the requirements of the Rehabilitation Act and the ATSA. Getzlow, id. As found by the AJ, and not contested by the Agency, the determination of whether an employee is "qualified" does not end at Complainant's TSO position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m) . The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (August 1, 2002). Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id. The Commission has consistently applied this reasoning to appeals concerning TSOs that were terminated when they were unable to perform the essential functions of the TSO position. See Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720100037 (March 26, 2014); Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120120440 (August 4, 2015); Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120121521 (August 29, 2014). We have held that in determining whether a qualified individual with a disability can perform the essential functions of the position, "the term 'position' is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment." Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120122648 (July 17, 2015) (citing Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). We disagree with the Agency's assertion that to require it to change its current policy exceeds the Commission's authority. The AJ's remedy merely requires the Agency to create a policy that reflects the obligation that it already has - to offer a reasonable accommodation in the form of a reassignment, when appropriate, to TSOs. On appeal, Complainant's attorney proffered the testimony of an Agency Reasonable Accommodation Program Manager, which supports the need for a change in policy. The Program Manager testified at the hearing that when a TSO can no longer perform the job that they were hired for, "our policy states that if you do not meet the statutory requirements of the TSO position, then you are not eligible for an accommodation under our policy which includes a reassignment (emphasis added)." However, she stated that for non-TSO employees, when a determination is made that they are no longer able to perform the duties of that position, the position search for a reassignment is "automatically triggered." The Program Manager also testified that with respect to reasonable accommodation, "everything is done from headquarters" rather than individual airports, noting that headquarters has access to "all of the vacancies . . . ." Consequently, we agree with the AJ in ordering an agency-wide modification in the existing policy to accurately reflect the Agency's obligations under the Rehabilitation Act. The remedy ordered simply mirrors the law and regulations already expressed in various Commission decisions, regarding TSOs and reasonable accommodation, and the existing interplay between the Rehabilitation Act and the ATSA. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby MODIFY that portion of the Agency's Final Order that rejected the AJ's order concerning changing its policy on reasonable accommodation in the form of reassignment, when appropriate, to TSOs. The AJ's decision is hereby AFFIRMED. The matter is REMANDED to the Agency for further action in accordance with this decision and the Order below. ORDER Within one hundred twenty days (120) of this decision becoming final, the Agency shall change its policy to reflect its legal obligation to offer a reasonable accommodation in the form of reassignment, when appropriate, to Transportation Security Officers. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), 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, 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 (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 signatur Carlton M. Hadden, Director Office of Federal Operations October 22, 2015 __________________ 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 Commission's website. 2 Although the statute references the "Under Secretary of Transportation for Security" as the Head of the TSA, the position has since been given the title of "Administrator of the Transportation Security Administration," as part of TSA's move from the Department of Transportation to the Department of Homeland Security. 49 C.F.R. § 1500.3; 49 U.S.C. § 114(a); 6 U.S.C. §203(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140024 2 0720140024