0120100259
04-20-2012
Maridale H. Bitterfield, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Maridale H. Bitterfield,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120100259
Agency No. HS07TSA002195
DECISION
On October 22, 2009, Complainant filed an appeal from the Agency's September 30, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1 The appeal is accepted it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against on the basis of age (62) when she was not selected for a Transportation Security Officer (TSO) position at the Harrisburg International Airport.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for a TSO position at the Harrisburg International Airport. The record reflects that Complainant applied for a TSO position on or about January 17, 2007. Subsequently, Complainant was contacted and advised that she had successfully passed the computerized evaluation of the application process, and was being given a contingent offer of employment. In April 2007, Complainant was contacted and advised that she needed to undergo a medical evaluation in order to complete the application process. On or about April 12, 2007, a contract physician at Comprehensive Health Services, Inc. (CHS) performed Complainant's medical evaluation, and placed her application on hold requiring that she undergo further medical evaluation. On or about April 23, 2007, Complainant was evaluated by a second physician. CHS review the results of the second evaluation on April 26, 2007 and determined that Complainant failed to meet the Agency's medical guidelines because of an orthopedic condition and her long term use of Coumadin.2
The record reflects that the selection process utilized here involved applicants passing a multi-step application process. Applicants were required to initially pass a Federal Security Screening Personnel Selection examination. Once applicants successfully passed this examination, they were invited to an assessment center depending on the date of their application, veterans' preference, number of qualified applicants, and the number of positions available. The assessment center was divided into two phases, Phase I (computer based examination) and Phase II (a structured interview, physical tests, and medical evaluations). An applicant had to pass or successfully complete each step of each Phase of the application process in order to remain in consideration for a TSO position. (See ROI, Ex. F-3)
The record reflects Complainant successfully completed Phase I testing on January 23, 2007 and that on January 24, 2007, Complainant was sent an invitation to schedule an appointment for Phase II of the TSO assessment process. On March 22, 2007, Complainant initiated Phase II of the TSO assessment process which consisted of a color vision test, medical evaluation that includes the Screener Medical Questionnaire (SMQ); medical history and evaluation "Fast Check" (vitals, orthopedic exam, and drug test); obtaining digital fingerprints and photo; and reviewing forms. The dashboard records indicate Complainant passed the color vision, required interview, drug test, forms review, photo fingerprint and background. However, Complainant did not successfully complete the medical evaluation on-site at the assessment center, and additional information was needed to ensure that she met all job-related requirements. Complainant was advised that her application had been placed in a "medical hold status" pending receipt of additional information regarding multiple medical conditions. (See ROI, Ex. F-3)
Complainant provided additional information which documented approximately a twelve month history of her medical conditions. Based on this additional medical information, Complainant was able to resolve certain Agency concerns; however, she was unable to resolve all of them. Specifically, the medical documentation indicated Complainant's daily use of certain medications, among them Coumadin. In accordance with the "Medical Guidelines for Transportation Security Screeners" (Medical Guidelines)3candidates are disqualified for employment as a TSO with TSA with current long term use of an anticoagulant and with a history of thoracic and umbosacral (Disc or Chronic Sprain) without surgery, which is symptomatic within the past year, with no radiographic findings or physical findings. (See ROI, Ex. G-2) Based on the information submitted by Complainant in response to the request for additional medical information, it was determined that Complainant was not eligible for employment.
On October 4, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issue Presented" above. At the conclusion of the 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination based on age. Specifically, the Agency found that it articulated a legitimate, non-discriminatory reason for not selecting Complainant for the TSO position, i.e., Complainant was medically disqualified pursuant to the Agency's medical guidelines due to her long term use of Coumadin and history of an orthopedic condition. The Agency found that Complainant failed to establish that these asserted reasons for her disqualification were pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency's medical guidelines do not define what constitutes "long term use." Additionally, Complainant has provided documentation from her physician that states that it was determined that Complainant did not in fact have an underlying condition requiring that she be treated with Coumadin and that her use of the medication was subsequently suspended. Additionally, Complainant contends that the Agency needs to be more explicit in explaining what is required for the TSO position, and what medical conditions will disqualify an applicant. Complainant asserts that she would not have applied for the position if she were aware of the fact the certain medical conditions would disqualify her. The Agency did not submit a reply to Complainant's appeal.
STANDARD OF REVIEW
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 Chapter 9, � VI.A. (November 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of age discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant alleges that she has been disparately treated by the employing Agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). 'That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
Assuming, for purposes of this decision only, that Complainant established a prima facie case of age discrimination, we find that the Agency provided a legitimate, non-discriminatory explanation for not selecting Complainant for the position, i.e., Complainant was medically disqualified pursuant to the Agency's medical guidelines. We further find that Complainant failed to establish pretext, i.e., that her age played any role in the Agency's decision. We note in this regard, Complainant's statement on appeal that:
As for why I also believe that my age was a factor in my nonselection, nearly all individuals over the age of 50 take medication for something. I am over age 60 and am in tip top shape but do take medications for some aches and pains due to injuries I have sustained over the years. I think that some medication is just expected for individuals over a certain age.
Complainant's arguments on appeal do not specifically contest the Agency's asserted reasons for not selecting her for the TSO position.4 An employer is free to develop selection criteria in order to choose among qualified applicants as long as the employer is not motivated by a discriminatory animus and applies the criterion in a non-discriminatory manner. See Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). The Agency adopted the Medical Guidelines pursuant to the Aviation and Transportation Security Act's (ATSA) authorized "additional qualifications" provision. We find no persuasive evidence that the Agency's application of the Medical Guidelines was motivated by discriminatory animus based on age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that Complainant has not established that she was discriminated against as alleged. Accordingly, the Agency's final decision is AFFIRMED.
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 (November 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 (S0610)
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. 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, Director
Office of Federal Operations
___4/20/12_______________
Date
1 Complainant did not allege discrimination based on disability.
2 Coumadin is used to prevent blood clots from forming or growing larger in the blood and blood vessels. It is prescribed for people with certain types of irregular heartbeat, people with prosthetic (replacement or mechanical) heart valves, and people who have suffered a heart attack. Coumadin is also used to treat or prevent venous thrombosis (swelling and blood clot in a vein) and pulmonary embolism (a blood clot in the lung). Coumadin is in a class of medications called anticoagulants ("blood thinners"). It works by decreasing the clotting ability of the blood. see http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000634/ (last visited 4/12/12).
3 The Medical Guidelines is the manual used to aid the examining physician in making judgments concerning the suitability of individuals for the TSO position. The manual was developed by a task force of medical specialist (e.g. cardiologist, neurologist) who evaluated the requirements of the essential tasks for the TSO position in relation to specific diseases and conditions in each body system (e.g. cardiovascular). These medical specialists used job analysis and ergonomic data to identify the degree of impairment for each disease or condition that would likely preclude an individual from safely and effectively performing the job duties. (See ROI, Ex. F-3)
4 Although the Agency may have been more forthcoming with the type of information Complainant indicated on appeal, we find no persuasive evidence that its failure to do so was based on discriminatory animus due to her age.
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0120100259
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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