EEOC Appeal 2019005820

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton A.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 2019005820
Hearing No. 510-2015-00094X
Agency No. HS-TSA-00908-2014
DECISION
On August 27, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 28, 2018, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO), SV-1802 (Band E), at the Agency’s Orlando International Airport
facility in Orlando, Florida.
On May 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (mental) when: (1) on approximately December 23, 2013,
he became aware that his request for a reasonable accommodation was denied, and (2) on or
around February 2, 2014, he became aware that he was removed from his position as a TSO.
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.

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The Agency accepted the complaint and conducted an investigation, which produced the
following pertinent facts:
Beginning in May 2013, Complainant was absent from work due to anxiety-related problems and
symptoms, including panic attacks, obsessive compulsiveness, and an inability to cope with
crises or stressful situations, sleep disorders, and depression.
Emails between Complainant and management, dated in June 2013, indicate that Complainant
explained the extent of his psychological symptoms, including frequent anxiety attacks and
insomnia. On June 21, 2013, management advised him to return to screening, provided a point of
contact for reporting, and informed him that he would be assigned a new schedule.
On July 24, 2013, Complainant submitted a Form WH-380-E Certification of Health Care
Provider for Employee’s Serious Health Condition (Family and Medical Leave Act) completed
by his physician. It indicates that Complainant’s condition commenced in May 2013 and its
probable duration was 3 to 4 months. It also indicates Complainant was prescribed medication
and was unable to perform any of his job functions due to this condition, noting he was not able
to deal with his work circumstances due to anxiety.
Emails dated in September 2013 indicate Complainant was not reporting to work and failing to
call in as instructed.
A September 12, 2013 letter from an Occupational Medical Consultant from the Department of
Health and Human Services (HHS) indicates that, based on Complainant’s July 24, 2013 medical
documentation, he does not meet the psychological guidelines for TSOs with anxiety. It further
provides that Complainant is unable to work due to anxiety, volatile mood, and insomnia and
Complainant had anxiety about perceived stress in his work environment.
On September 24, 2013, the Agency issued Complainant a Notice of Proposed Removal for
failure to meet the medical qualification of TSO. It indicates that, on July 24 ,2014, Complainant
submitted medical documentation indicating he was unable to perform any of his job functions
due to his inability to deal with his work circumstances due to anxiety. It notes that a Federal
Occupational Health review on September 12, 2013 determined Complainant did not meet the
psychological guidelines and statutory requirements for the TSO position and he was, therefore,
medically disqualified for continued duty.
On October 4, 2013, Complainant submitted a letter to the Agency in reply to the Notice of
Proposed Removal requesting a reassignment as a reasonable accommodation. He indicated he
qualified for the following positions under his current pay band status: clerk, program assistant,
secretary, and administrative assistant.
A November 12, 2013 letter from Complainant’s psychiatrist indicates that it is his opinion that
Complainant’s FMLA leave should be extended six to eight weeks from November 15, 2013 and
provides that Complainant is presenting with extreme anxiety, insomnia, and depression.

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A December 23, 2013 letter from the Agency’s Acting Reasonable Accommodation Program
(RAP) Manager to Complainant indicates that, on October 17, 2013, the RAP Office received
Complainant’s request for a reassignment as a reasonable accommodation. The Acting RAP
Manager indicated that Complainant’s request was denied, based on the Agency’s Federal
Occupational Health medical evaluation letter. The letter indicated that federal regulations
require TSA security screeners to meet certain standards for fitness for duty, including the ability
to demonstrate daily a fitness for duty without any impairment due to sleep deprivation, or
medication, as well as requirements relating to focus and mental ability and medical standards.
The letter indicates that, based on Complainant’s medical documentation, he does not meet the
psychological guidelines for TSOs with anxiety and, in addition, the Job Analysis Tool for the
TSO position clearly states that, as a condition of employment, any employee occupying the
TSO position must meet and maintain the medical requirements for security screening work.
The letter further provides that, in accordance with Agency policy, TSOs who are unable to meet
the statutory requirements of the TSO position were not eligible for reasonable accommodation
and, therefore, Complainant’s request was denied.
A January 13, 2014 Notice of Decision on Adverse Action Proposed on September 24, 2013
from the Deputy Federal Security Director (Deputy Director) to Complainant indicates that the
Deputy Director decided to remove Complainant from his TSO position and Federal service,
effective immediately on the date and time Complainant received the letter or five days of the
date of mailing, whichever is earlier. The Notice provides that the decision was made to promote
the efficiency of the Federal service and is based on Complainant’s failure to meet the
qualifications of a TSO.
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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
After both parties submitted motions for a decision without a hearing, the AJ assigned to the case
issued a decision without a hearing on December 6, 2018. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.
The instant appeal followed.2 On appeal Complainant asserts that the basic facts are not in
dispute: Complainant was disabled and did not meet the medical qualifications for the TSO
position; he requested a reassignment as a reasonable accommodation; and the Agency did not
look for a position or engage in the reasonable accommodation interactive process because the
Agency stated that, as a TSO, Complainant was not entitled to reasonable accommodation,
including reassignment.
2 On appeal, the Agency asserts that the instant appeal is untimely. We agree with Complainant’s
assertions that the appeal is timely, noting the record supports finding Complainant did not
receive the FAD.

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In response, the Agency notes that the results of a search conducted during discovery show that,
from September 1, 2013 through February 2, 2014, there were no vacant and funded positions
within the Agency that Complainant qualified for at his duty station (MCO) or within a 50-mile
radius of MCO and, therefore, Complainant is unable to identify a vacant, funded position for
which he is qualified. The Agency also asserts that Complainant has failed to establish a prima
facie case of disability discrimination because he cannot establish that he is a qualified individual
with a disability. In so doing, the Agency reasons that because Complainant cannot meet the
legally-mandated TSO qualifications, he is not “qualified.” The Agency also asserts that TSOs
who fail to meet the statutory requirements of the TSO position are not eligible for a reasonable
accommodation.
The Agency also asserts that, alternatively, assuming Complainant has met his burden to
establish a prima facie case of discrimination, the Agency had legitimate non-discriminatory
reasons for its actions in that Complainant was medically disqualified from his position. The
Agency also argues that Complainant is unable to show that its reasons were pretextual for
unlawful discrimination. The Agency asks that we affirm the AJ’s decision.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the
outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and, for the reasons discussed below, find that it is not
adequately developed.
Complainant asserts that the Agency improperly denied him a reassignment as a reasonable
accommodation. The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that Complainant
was denied a reasonable accommodation, Complainant must show that: (1) he is an individual
with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he 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

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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).
The Agency does not dispute that Complainant is an individual with a disability. Therefore, the
next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R.
§1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment position and who,
with or without reasonable accommodation, can perform the essential functions of such position.
Id.
Pursuant to the Aviation Transportation Security Act (ATSA), the Transportation Security
Administration (TSA) has broad responsibility for maintaining airport security, including setting
the qualifications, conditions, and standards of employment for TSOs who perform screening
functions, such as Complainant. 49 U.S.C. § 114. Moreover, the statute requires such security
personal to have the ability to demonstrate daily a fitness for duty without any impairment due to
sleep deprivation or medication. Id. § 44935(e)(2)(A).
Neither party disputes the fact that the medical evidence establishes that Complainant did not
meet the qualifications and standards required to perform his position as a TSO.
However, the discussion of “qualified” does not end at Complainant's position of record. 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 (Aug. 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.; EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation) No.
915.002 (rev. Oct. 17, 2002) “Reassignment” Question 28; footnote 87; see also Interpretive
Guidance on Title I of the Americans with Disabilities Act, Appendix, to 29 C.F.R. Part
1630.2(o).
Here, Complainant requested a reassignment as a reasonable accommodation and the Agency
conducted a search for available positions, limited to a 50-mile radius from Complainant’s duty
station. Reassignment is the reasonable accommodation of last resort and is required only after it
has been determined that: (1) there are no effective accommodations that will enable the
employee to perform the essential functions of the employee's current position; or (2) all other

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reasonable accommodations would impose an undue hardship. Enforcement Guidance on
Reasonable Accommodation at Question 24.
As set forth earlier, the AJ may properly consider issuing summary judgment only upon a
determination that the record has been adequately developed for summary disposition. Petty,
supra. In addition, the hearing process is intended to be an extension of the investigative process,
designed to ensure that the parties have a fair and reasonable opportunity to explain and
supplement the record.
In the present case, the record was not adequately developed with respect to the Agency’s search
for a vacant, funded position to which it could have reassigned Complainant. See Darlene R. v.
Dep't of Veterans Aff., EEOC Appeal No. 0120152909 (Nov. 3, 2017) (investigation did not
reveal agency conducted a search for positions). Although the Agency suggests it is
Complainant’s burden to identify a vacant and funded position for which he is qualified, the
Agency is in the best position to know which jobs are vacant or will become vacant within a
reasonable period of time and it is obligated to inform an employee about vacant positions for
which a complainant may be eligible as a reassignment. Enforcement Guidance on Reasonable
Accommodation at Question 28; Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989
(Oct. 16, 2016) (investigator must obtain relevant information about the availability of vacant,
funded positions). Accordingly, we will remand this matter for further development of the
evidentiary record regarding the availability of a vacant, funded position(s), and to provide
Complainant with an opportunity to address whether he could perform the essential functions of
any such vacant, funded position(s) with or without a reasonable accommodation. While the
Agency conducted a search within a 50-mile radius of Complainant’s duty station, the Agency's
obligation under the Rehabilitation Act to offer a reassignment is not limited to vacancies within
a particular department, facility, or geographical area. Bill A. v. Dep't of the Army, supra. The
“extent of the agency's search for a vacant position is an issue of undue hardship.” Id.
Based on the foregoing, we find that the AJ erred in concluding that the record was adequately
developed such that summary judgment was appropriate. An appropriate factual record is one
that allows a reasonable fact finder to draw conclusions as to whether a violation of the
discrimination statute occurred. Therefore, judgment as a matter of law in favor of the Agency
should not have been granted. See Barry v. Dep't of Commerce, EEOC Appeal No. 0120093834
(June 30, 2011).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the AJ’s decision and REMAND this matter for
further processing in accordance with this decision and Order below.

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ORDER
The Commission ORDERS the following actions:
Within 30 calendar days from the date this decision is issued, the Agency commence, with
written notification to Complainant, a supplemental investigation into the reassignment issue as
more fully discussed in this decision. Within 90 calendar days from the date this decision is
issued, the Agency shall issue the new report of investigation to Complainant and a new notice
providing Complainant the right to request a hearing or an immediate final decision based on the
supplemented record. If Complainant requests an immediate final decision, it shall be issued
within the regulatory time period.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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“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 signature
Carlton M. Hadden, Director
Office of Federal Operations
May 14, 2020
Date