Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120112139 Agency No. HSTSA020822006 DECISION On March 18, 2011, Complainant filed an appeal from the Agency's February 18, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED Did Complainant establish that the Agency discriminated against him on the bases of disability and/or reprisal when it did not select him for a detail position? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer, grade F Band, at the Orlando International Airport (MCO) in Florida. Transportation Security Officers are required to annually maintain their certifications in order to remain in their positions. In January 2006, Complainant was due for his annual recertification, which included answering questions and a live review of his performance. Complainant stated that, for three weeks prior to his recertification, management walked around the airport telling employees that anyone who does not pass recertification will lose their job. Complainant mentioned to his psychiatrist that managements' actions and his performance anxiety for the recertification process were making him stressed. On or about January 17, 2006, Complainant submitted a letter to the Federal Security Director (S1) from his psychiatrist, which stated: [Complainant] has been under my care since April 12, 2000 for the condition of depression and anxiety. [Complainant] also suffers from Attention Deficit Disorder and Hyperactivity. [Complainant] is currently on a regimen of medications, which have allowed him to complete tasks with minimal difficulties. Recently, [Complainant] brought to my attention that he will be undergoing a yearly performance review and is very concerned that his medical conditions might prohibit him from performing to the best of his ability. Since [Complainant] has difficulties with performing under pressure, I would like to ask that you take this under consideration during his yearly performance review. Any consideration you would provide to my patient will be appreciated. Complainant asked S1 that this letter be put into his medical file. Instead, S1 placed the letter into Complainant's official personnel file. On February 2, 2006, an announcement was issued for multiple detail1 positions for Operations Center Specialists in the airport's Operations Center. Complainant submitted his resume for consideration for a position and was one of 26 applicants. When Complainant did not hear whether he had been selected, he contacted the Supervisory Program Analyst (S2) who served as the selecting official for the position. In May 2006, S2 informed Complainant that she did not select him for the position. The record reflects that approximately 20 positions were filled. ROI at Tab F2, page 4. S2 stated in her affidavit: I reviewed [Complainant's] resume and did not select him for an interview because of his previous request for a medical consideration when he was required to recertify. [Complainant] has a medical problem with recertification, in that [Complainant] submitted a letter requesting special consideration during and in part, his score, (sic) for recertification. [Complainant's] physician stated '[Complainant] has difficulties with performing under pressure.' Therefore, with this information, I did not chose to interview [Complainant] for a detail in the operations center. This is a stressful environment and in his best interests, I did not consider him for one of the positions." ROI at Tab F2, page 3. On December 6, 2006, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability (depression, anxiety, Attention Deficit Disorder and Hyperactivity (ADHD)) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, on or about April 26, 2006,2 he was not selected for a detail position to the Operations Center. Originally the Agency accepted Complainant's claim of reprisal but dismissed Complainant's disability claim for failure to state a claim pursuant to the Aviation and Transportation Security Act. However, on September 15, 2010, the Agency reversed its dismissal of Complainant's disability claim and conducted a supplemental investigation on this claim. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).3 On February 18, 2011, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision dismissed Complainant's claim of retaliation because Complainant did not engage in any prior protected activity. Additionally, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency found that Complainant did not establish that he is an individual with a disability because he did not produce any evidence proving that he is substantially limited in performing a major life activity, nor did he establish that he had a record of such a disability or that the Agency regarded him as having a disability. The Agency also found that it had articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the position, which Complainant did not establish was a pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that he established that he was subjected to discrimination when the Agency did not select him for the detail position in the Operations Center. Complainant states that the Agency's decision not to select him for the detail position was based on S2's personal opinion that he cannot work in stressful environments, and that there is no evidence in the record that would establish that he cannot work in high-pressure environments. The Agency did not offer any new contentions on appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Dismissal of the Reprisal Claim The Agency dismissed Complainant's reprisal claim, finding that Complainant had never engaged in protected EEO activity prior to this complaint. However, a request for reasonable accommodation constitutes protected activity. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 § 8-II.B.2. (May 20, 1998) (EEOC Compliance Manual on Retaliation). Here, we find that Complainant requested a reasonable accommodation when he submitted the note in which his psychiatrist requested that the Agency take into consideration Complainant's disabilities during his yearly performance review. Therefore, Complainant engaged in protected EEO activity, and dismissal of this claim was improper. We discuss this matter further, infra. Disparate Treatment Analysis 1. Disability The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In a case of disparate treatment, Complainant must first establish that he is an individual with a disability. An individual with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. Interpretive Guidance on Title J of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(i). Here, we agree with the Agency that, beyond the January 2006 letter from Complainant's psychiatrist, Complainant has not provided any additional evidence that would establish that he is substantially limited in a major life activity. Additionally, that letter alone may not be sufficient to establish that Complainant has a record of such impairment. If an individual cannot satisfy either the first part of the definition of "disability" or the second "record of" part of the definition, such as in this case, he or she may be able to satisfy the third part of the definition. The third part of the definition provides that an individual who is regarded by an employer as having an impairment that substantially limits a major life activity is an individual with a disability. EEOC Regulation 29 C.F.R. 1630.2(I)4 provides that the term "regarded as" having an impairment means: 1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation, 2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; or 3) has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment. The Supreme Court has analyzed the "regarded as" definition of an individual with a disability, and found that, although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted that an "impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment." Id. 283. The Court stated that by including "regarded as" in the Rehabilitation Act's definition, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." Id. at 284. Here, S2 stated that she did not select Complainant because she saw the psychiatrist's letter in his official personnel file and, because the psychiatrist stated that Complainant has difficulties with performing under pressure, she chose not to interview Complainant for a detail in the Operations Center because it is a stressful environment. We find that S2 treated Complainant as if he were substantially limited in the major life activity of working in a wide range of jobs; more specifically, high-stress jobs. As a result, S2 regarded Complainant as having an impairment that substantially limits a major life activity. Complainant therefore meets the definition of an individual with a disability under the Rehabilitation Act. Next, we find that S2's admission that she did not interview Complainant for the position because of the medical information she gathered from the psychiatrist's letter is direct evidence of disability discrimination. The Agency presented no evidence that Complainant was not selected for any reason except that S2 regarded him as disabled and assumed he could not perform in a stressful environment.5 See Lowe v. Dep't of Air Force, EEOC Appeal No. 01964297 (Aug. 12, 1998) (direct evidence of disability disparate treatment existed where agency admitted that complainant's performance appraisal was lowered because he was individual with disability); Strawn v. General Services Admin., EEOC Appeal No. 01943187 (June 20, 1996) (statement by rating official that he lowered complainant's rating because of absences, where absences were related to disability, constituted direct evidence of disability discrimination). Further, the evidence of record indicates that Complainant more likely than not would have been selected for the position in the Operations Center had S2 not taken into consideration Complainant's perceived disability. Complainant alleged that S2 told him that, after reviewing Complainant's resume, she determined that he was well-qualified for the position, but when she saw the medical statement in his personnel file stating that he had ADHD, she felt that the position would be too much pressure for Complainant. ROI at F1, page 4. The record establishes that Complainant was in fact was well-qualified for the position, as he was one of eight persons who participated in the creation and set-up of the Operations Center. ROI at F1, page 5. Additionally, S2 stated in her affidavit that she was told that Complainant is a good worker. ROI at F2, page 5. The record also contains evidence of Complainant's high performance evaluations and awards for his performance. Therefore, we find that the Agency discriminated against Complainant on the basis of disability when it did not select him for the detail position in the Operations Center. Finally, the Rehabilitation Act states that any information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record ...." 29 C.F.R. § 1630.14(c)(1); 42 U.S.C § 12112(d)(3)(B). By its very terms, this requirement applies to medical information obtained from "any employee" and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (April 13, 2000). Further, the requirement applies to all medical information, including information that an individual voluntarily discloses. EEOC Enforcement Guidance; Pre-employment Disability-Related Questions and Medical Examinations, EEOC Notice 915.2002 (Oct. 10. 1995). Documentation concerning an individual's diagnosis or symptoms is confidential medical information. Id. at 22. The evidence in the record establishes that the Agency did not maintain Complainant's confidential medical information in a separate medical file. Instead, S1 placed the documentation, which identified Complainant's diagnosis and described his symptoms, in his official personnel file. We find this is a per se violation of the Rehabilitation Act. 2. Reprisal We note that there is no direct evidence of reprisal discrimination in this case. In a claim of disparate treatment based on circumstantial evidence, the evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here, a preponderance of the evidence in the record establishes that Complainant was discriminated against when he was not selected for the detail because the Agency regarded him as disabled. However, there is no evidence in the record that would establish that the Agency did not select him for the detail because he requested a reasonable accommodation. Complainant's own statements in his affidavit undermine his reprisal claim. For example, when asked for the reasons that he was not selected for the Operations Center position, he stated in his affidavit, "The reason was not due to EEO activity." ROI at F1, page 4. As a result, we find that Complainant did not establish reprisal discrimination. Remedies Complainant requested all remedies available to him under the law, including a salary increase to the supervisory position with pay applied retroactively to the time when he would have been selected, and applicable bonuses. We note that Complainant was terminated from his position in 2007,6 and as a result, ordering the Agency to retroactively place him in the detail position now would not be appropriate. We find that the record is not clear as to whether Complainant would have received an increase in pay or any other bonuses if he had been selected for the detail position. Additionally, while the record indicates that these detail positions served as a springboard for higher-grade positions, there is not sufficient evidence in the record to establish that Complainant would have received a higher-level position once the detail ended, and if he therefore would be entitled to any back pay or benefits related to a promotion. Finally, the record is not sufficient for us to determine compensatory damages, both pecuniary and non-pecuniary, to which Complainant may be entitled in order to make him whole. Therefore, we remand the issue of remedies back to the Agency for a supplemental investigation and determination. 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 decision, because a preponderance of the evidence of the record establishes that Complainant was discriminated against on the basis of disability, and that the Agency per se violated the Rehabilitation Act. We REMAND the case to the Agency for further proceedings consistent with this decision and the Order of the Commission, below. ORDER The Agency is hereby ORDERED to take the following remedial actions: 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall ensure that all confidential medical information for all employees, including Complainant, is kept in a separate medical file and is not part of employees' official personnel files. The Agency shall report to the Compliance Officer at the address referenced below the actions it took to ensure that it is in compliance with this requirement of the Rehabilitation Act. 2. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under the Rehabilitation Act. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than one hundred and twenty (120) days from the date this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 3. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency is to conduct a supplemental investigation and determine whether Complainant is due back pay for the detail position, and if so, the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, from the date he would have begun his detail until the date the detail would have expired. Further, if the Agency determines that Complainant would have received a promotion after the detail, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due from the date of the end of his detail until the date of his termination from the Agency. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. The 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." 4. The Agency shall consider taking disciplinary action against S1 and S2 as referenced in this decision, within 90 calendar days after this decision becomes final. 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 S1 or S2 is no longer in the Agency's employ, the Agency shall furnish the date(s) of separation. 5. The Agency is directed to provide a minimum of eight (8) hours of in-person EEO training for all management officials at the facility within one hundred twenty (120) days from the date this decision becomes final. The training shall address their responsibilities with respect to eliminating discrimination in the workplace, with an emphasis on the Rehabilitation Act and management's responsibilities under the Act. 6. The Agency shall post the attached notice of discrimination, as described below. 7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Orlando International Airport (MCO) 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 becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-20-2015 __________________ Date 1 While Complainant refers to this position as a "collateral duty" position, it is apparent from the record that Complainant uses this term for any position that will not be permanently filled; he does not use term in the traditional sense of an extra duty in addition to his regular duties. ROI at F1, page 5. 2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. 3 It is not apparent from the record whether Complainant responded to the notice, but on appeal he does not contest the Agency's issuance of a FAD. 4 We note that citation refers to the regulations in effect prior to revisions reflecting enactment of the ADA Amendments Act of 2008. 5 We note that the psychiatrist's note did not state that Complainant could not work in any stressful environments; it addressed only the performance pressure Complainant was experiencing for the upcoming recertification process. The record reflects that Complainant's job as a Lead Transportation Security Officer often involved stress, but Complainant was able to perform the essential functions of that position without any difficulties. 6 Complainant was terminated from his position around December 20, 2007. The Commission affirmed the Agency's adoption of an EEOC AJ's decision without a hearing finding that the termination was not motivated by discrimination. Satterlee v. Dep't Homeland Security, EEOC Appeal No. 0120100425 (Aug. 25, 2011). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120112139 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120112139