U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathleen P.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0720150036 Hearing No. 541-2012-00045X Agency No. HS-TSA-18037-2010 DECISION Concurrent with the issuance of its July 2, 2015 final order, the Agency filed a timely appeal requesting that the Equal Employment Opportunity Commission (EEOC or Commission) affirm its rejection of an EEOC Administrative Judge's finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ, specifically, the award of front pay and the amount of non-pecuniary damages. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND Since 2002, Complainant has worked as a Transportation Security Officer (TSO) at the Colorado Springs Municipal Airport, in Colorado Springs, Colorado. Complainant has had epilepsy since she was fourteen years old. In January 2010, Complainant suffered a seizure off the job. Complainant reported the seizure to the Agency. In response, the Agency placed her on administrative leave to conduct a medical fitness review. The Agency physician concluded that the seizure was an isolated incident, and Complainant returned to work. In June 2010, Complainant experienced another off-duty seizure and reported the incident to management. Citing the Agency's Medical Guidelines for Transportation Security Officers, Complainant was disqualified from her position. On July 30, 2010, Complainant was terminated due to this medical disqualification. Believing that her removal was discriminatory, Complainant filed a formal EEO complaint on October 29, 2010. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on October 24, 2012 and December 31, 2012. On May 27, 2015, the AJ issued a decision finding that the Agency violated the Rehabilitation Act when it "refused to accommodate Complainant after it deemed her unfit for duty as a TSO due to having two seizures within a year." The Agency had reasoned that Complainant was removed for her TSO position because she was no longer qualified under its medical guidelines. However, the AJ found that the Agency failed to conduct an individualized analysis of Complainant's condition under its own policy. With respect to epilepsy, the Agency's guidelines state: "individuals are disqualified from the TSO position if they have suffered severe seizures that interfere with the activities of daily living." The AJ determined that the Agency's physician failed to articulate why Complainant's two seizures were deemed "severe" or how the seizures interfered with her "activities of daily living." Contrastingly, Complainant's doctor did not find her seizures to be debilitating and her supervisor did not observe any impact on her job, other than occasionally needing a day off due to migraines. Moreover, the AJ found that the Agency failed to consider how Complainant's condition might result in harm to the traveling public or herself. Complainant, observed the AJ, did not suffer a grand mal seizure, but merely was unaware of her surroundings for several minutes. Additionally, the AJ reasoned that even if the Agency correctly concluded that Complainant was disabled from her TSO position, it was required to determine whether there was an available accommodation. Complainant herself suggested a transfer to a non-screening position or placement on Leave Without Pay (LWOP) for six months, until only one seizure was on her record and she could return to the TSO position. The Agency argued that it would be an undue hardship to hold a position open for six months or a year. Such contentions, reasoned the AJ, were unbelievable from an Agency the size of TSA. Complainant was awarded $46,800 in front pay; $75,000 in non-pecuniary damages; and $21,700 in attorney's fees. The Agency subsequently issued a final order rejecting the AJ's finding and award of damages, and filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review 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. Disparate Treatment As an initial matter, we find that the complaint presents a claim of disparate treatment. Complainant has alleged that she was discriminated against when she was removed from her TSO position based on her disability. In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, a complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id. On appeal, the Agency states that it does not dispute Complainant's status as a person with a disability. Therefore, we shall not consider this portion of the analysis. Instead, it maintains that Complainant is not "qualified" for the TSO position. As a TSO, Complainant must meet the requirements set forth in the Aviation and Transportation Security Act (ATSA). Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2011, in order to "improve aviation security" by effecting "fundamental change in the way [the United States] approaches the task of ensuring the safety and security of the civil air transportation system." H.R. Conf. Rep. No. 107-296 at 1.49 (2001), reprinted in 2002 U.S.C.C.A.N. 589, 590. Toward that goal, Congress created a new Agency, the TSA with sweeping responsibility for airport security screening, including setting the qualifications, conditions, and standards of employment for airport security screeners. 49 U.S.C. § 114. Section 111(d) of the ATSA, codified as a note to 49 U.S.C. § 44935 states that: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions. The Commission has held that the ATSA does not divest the Commission of jurisdiction over a complaint brought by a TSO against the Agency under the Rehabilitation Act or other statutes the Commission enforces. Kimble v. Dep't of Homeland Security, EEOC Appeal No. 0120072195 (Nov. 24, 2009). While Congress gave the Agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from § 501 of the Rehabilitation Act and the other employment discrimination laws. Chapman v. Dep't of Homeland Security, EEOC Appeal No. 0120051049 (Aug. 6, 2008), req. for recon. den'd, EEOC Request No. 0520080805 (Dec. 11, 2008); Adams v. Dep't of Homeland Security, EEOC Appeal No. 0120054463 (Aug. 31, 2007); Getzlow v. Dep't of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), req. for recon. den'd, EEOC Request No. 0520070839 (Oct. 12, 2007). Accordingly, the Commission has authority to hear complaints under the Rehabilitation Act involving TSO positions. Id. The Agency contends that Complainant was removed from her TSO position based upon medical guidelines, which provides that an individual is disqualified from the position "with complex partial seizures within the past year, with or without treatment or with side effects from the treatment; or with severe seizures that interfere with activities of daily living."2 When the Agency learned of Complainant's first seizure, resulting from a reduction in Complainant's medication levels due to influenza, the Agency's physician concluded the seizure was an isolated incident and did not recommend termination. Complainant was cautioned that if another seizure occurred, he would suggest that she not return to TSO duty. Therefore, in this case, the AJ found that the guidelines were interpreted to mean that two epileptic seizures, of any nature, within one year was disqualifying. As noted by the AJ, the Agency's physician failed to explain why the two seizures experienced by Complainant, that last several minutes and requires her to sleep for approximately twelve hours to fully recover, were deemed either "complex" or "severe". He also failed to describe how the seizures interfered with daily living. In contrast, Complainant's physician deemed the events as "breakthrough" seizures that were not debilitating. Further, direct management did not observe any impact on Complainant's ability to perform her job duties, other than needing a day off occasionally. Therefore, we find that the AJ's determination that Complainant was "qualified" for the position is supported by the record. To the extent that Complainant's condition might result in injury to herself or the traveling public, the AJ found that the Agency failed to perform an individualized assessment. A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. § 1630.2(r). The "direct threat" evaluation must be based on an individualized assessment of the individual's present ability to perform the essential functions of the job. 29 C.F.R. § 1630.2(r); 29 C.F.R. 1630 App. 1630.15(b) and (c); Nathan v. Dep't of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). Id. Here the Agency contends that Complainant cannot safely perform the TSO duties because she has had two epileptic seizures in a year. In order to exclude an individual on the basis of future possible injury, the Agency must show there is a significant risk by establishing a high probability of substantial harm. A speculative or remote risk is insufficient. The Agency must show more than that an individual with a disability stands some slightly increased risk of harm. The burden of showing a significant risk is on the Agency. Selix v. U.S. Postal Serv., EEOC Appeal No. 01970153 (Mar. 16, 2000). Moreover, such a finding must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r); Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of Rhode Is., Dep't of Mental Health Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the agency must gather information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. v. Echazabal, supra. According to the Agency, its physician only reviewed the emergency room paperwork regarding the second seizure provided by Complainant, and consulted the Agency's medical guidelines. Even on appeal, the Agency fails to address the factors comprising an individualized assessment. Therefore, we find that substantial evidence of record supports the AJ's conclusion that the Agency's violated the Rehabilitation Act when it terminated Complainant's employment. Failure to Accommodate Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. § 1630.9; EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002). Even assuming that the Agency was correct and Complainant was medically unable to perform her duties as a TSO, the AJ went on to conclude that the Agency failed to consider providing her with a reasonable accommodation. While determining that the evidence did not establish that there was an available position into which Complainant could be reassigned, substantial evidence supports the AJ's conclusion that she could have been effectively accommodated by being placed on leave without pay (LWOP), which would have given her adequate time to be seizure free and medically re-qualify for her TSO position. The AJ further determined that the Agency failed to establish that holding Complainant's position opened for a six-month period or even a year would have constituted an undue hardship. We agree that the record supports the AJ in this regard. While the Agency argues it was unreasonable to expect it to hold the position opened indefinitely, the AJ placed a specific time frame on the proposed accommodation and the medical evidence from Complainant's own physician seems to support the conclusion that it was likely that she would be seizure-free if given this period of time. The AJ indicated that reinstatement was an option available as a remedy to be ordered. However, the AJ went on to conclude that reinstatement was no longer viable due to the passage of time (Complainant was over 65 years old) and the contentious nature of the relationships. Therefore, the AJ determined that a front pay award was more appropriate in this case, and ordered $46,800 (two years pay) less any severance already paid. Remedies Compensatory Damages Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. EEOC's guidance on Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). AJ awarded Complainant $75,000 for the emotional distress she suffered as a result of her discriminatory termination. The AJ noted that Complainant experienced considerable stress and emotional disturbance over losing her livelihood, was put at risk when she lost her medical insurance, and even at the hearing was still emotionally volatile. On appeal, the Agency argues that the "reasonable range in this case is no more than $10,000 to $15,000, and likely even less." We are not persuaded, and find no reason to disturb the AJ's award of $75,000 in non-pecuniary compensatory damages. This award is supported by substantial evidence and is consistent with the Commission's awards in similar cases. See, e.g., Quick v. Dep't of Veterans Affairs, EEOC Appeal No. 01A13884 (Sept. 4, 2003) (awarding $75,000 to Complainant who was denied reasonable accommodation and terminated from a temporary position); Hicks v. U.S. Postal Service, EEOC Appeal No. 07A10020 (Sept. 6, 2003) (awarding $70,000 to a Complainant who was wrongfully terminated based on disability and he went from being optimistic to being sad, bitter, depressed, and withdrawn). Front Pay Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Tyler v. U.S. Postal Serv., EEOC Request No. 05870340 (Feb. 1, 1988). In order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). On appeal, the Agency contends that the circumstances where front pay is appropriate are not present in the instant case. According to the Agency, "Complainant chose not to seek reinstatement, even though she was advised that she could seek reinstatement after being seizure free for one year." While the AJ found that Complainant was not aware of the possibility of seeking reinstatement, the record shows that Complainant was advised, via a letter from the Agency's medical officer, that she could reapply for the position after being seizure free for one year. Furthermore, at hearing she testified that she made no attempt to reapply after one year had passed, and did not contact anyone at the Agency to inquire about reinstatement. Moreover, at the hearing, Complainant made it clear that she had no interest in returning to the Agency. Thus, this is not a case where no position was available. The evidence also does not establish that the relationship between the parties would be antagonistic, or the Agency has a record of long-term resistance to anti-discrimination efforts. Therefore, we agree with the Agency that the award of front pay should be reversed. Attorney's Fees Finally, as we are affirming the AJ's conclusion that Complainant has prevailed in this case, and the Agency has not specifically challenged on appeal the amount of the AJ's award of attorney's fees, we will affirm that remedy. CONCLUSION After a careful review of the record, including the Agency's arguments on appeal, Complainant's response, and arguments and evidence not specifically addressed in this decision, the Commission finds that the AJ's decision summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The Commission REVERSES the Agency's final order with respect to the finding of discrimination and MODIFIES the AJ's remedies determination by removing the award of front pay. The matter is REMANDED to the Agency for remedial action in accordance with this decision and the Order below. ORDER Within thirty (30) days from the date this decision becomes final, the Agency shall: (1) Pay Complainant $75,000 in non-pecuniary damages. (2) Pay Complainant $21,700 in attorney's fees. Within ninety (90) days from the date this decision becomes final, the Agency shall: (3) Provide training to all the responsible management officials in this matter regarding the requirements of the Rehabilitation Act. The Agency shall post the attached notice of discrimination consistent with the "Posting Order below. POSTING ORDER (G0610) The Agency is ordered to post at its Colorado Springs Municipal Airport copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) 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 (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 (M0610) 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 9-18 (Nov. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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's signature Carlton M. Hadden, Director Office of Federal Operations September 26, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The guidelines also instruct the Agency's medical officer to "evaluate" an employee for possible disqualification "with occasional nocturnal or simple partial seizures in the past year." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150036 2 0720150036