* * * PORTER H., COMPLAINANT, v. JEH JOHNSON,..., EEOC DOC...

EEOC DOC 0720140018 (E.E.O.C.), 2016 WL 1085202
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * PORTER H., COMPLAINANT,
v.
JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY
ADMINISTRATION), AGENCY.
Appeal No. 0720140018
Hearing No. 550-2011-00038X
Agency No. HS-TSA-09743-2009
March 11, 2016
DISMISSAL OF AGENCY'S APPEAL

*1 Along with the issuance of a final order, the Agency filed a January 17, 2014, appeal which the Commission reviews pursuant
to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment
Opportunity Commission Administrative Judge's (AJ's) finding that it failed to provide Complainant with a reasonable
accommodation, which culminated in Complainant's termination from the Agency, 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 appeals the AJ's award
of attorney's fees on the basis that the award is “excessive and unreasonable.” Additionally, the Agency appeals the ordered
injunctive relief, as well as the AJ's instruction to issue a memorandum to all managers and supervisors that informs them that
they can be subject to discipline for terminating an employee based on disability instead of providing a reasonable
accommodation.

At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO) at
the McCarran International Airport in Clark County (Las Vegas), Nevada.

On March 13, 2010, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the
basis of disability when it terminated him on July 23, 2009. At the conclusion of the investigation of this complaint, 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, and the AJ held a
hearing on August 21 and 22, 2013.
AJ's Decision

On November 15, 2013, the AJ issued a decision in which she found that the Agency failed to provide Complainant with a
reasonable accommodation for his disability, which resulted in his termination from the Agency. The AJ issued a second decision
on remedies on December 19, 2013, which included an order to offer Complainant reinstatement into a light-duty position
(Checkpoint Ticket and Document Checker or Exit Lane Monitor; Checked Baggage Office Administrative Assistant; or a
substantially equivalent light-duty position); pay Complainant back pay and benefits with interest; pay Complainant
non-pecuniary compensatory damages of $2,000; and pay Complainant $76,750 in attorney's fees. Additionally, the AJ ordered
the Agency to cease terminating disabled employees instead of providing them with reasonable accommodation, including light
duty under appropriate circumstances. The AJ further ordered the Agency to provide the Agency's Director of Worker's
Compensation Programs with at least two hours of in-person training on the Rehabilitation Act, the interplay between worker's
compensation and the Rehabilitation Act, the law on reasonable accommodation, and the provision of light duty as a reasonable
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accommodation. The AJ also ordered the Agency to post notices of discrimination at its Agency administrative offices and the
Las Vegas airport, and to inform all managers and supervisors at the Las Vegas airport that they can be subject to discipline for
terminating employees based on disability instead providing reasonable accommodations, including light duty. The Agency
subsequently issued its final order and appealed the AJ's finding that it failed to provide Complainant with a reasonable
accommodation as well as several remedies awarded by the AJ.

*2 The Agency issued its final order and filed its appeal on January 17, 2014. At that time, the Agency did not offer Complainant
reinstatement to a position as ordered by the AJ. On February 18, 2014, Complainant submitted a motion to the Commission to
dismiss the Agency's appeal because the Agency did not comply with 29 C.F.R. § 1614.505 by offering him interim placement
into a position.

29 C.F.R. § 1614.505(a)(1) states:
When the agency appeals and the case involves removal, separation, or suspension continuing beyond the date
of the appeal, and when the administrative judge's decision orders retroactive restoration, the agency shall comply
with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the
position specified in the decision, pending the outcome of the agency appeal. The employee may decline the offer
of interim relief.

Additionally, 29 C.F.R. § 1614.505(b) states, in relevant part:
If the agency files an appeal and has not provided required interim relief, the complainant may request dismissal
of the agency's appeal. Any such request must be filed with the Office of Federal Operations within 25 days of
the date of service of the agency's appeal.

The record reveals that the Agency did not present Complainant with an offer of reinstatement until February 28, 2014,
once the failure to offer interim relief was brought to the Agency's attention. In its March 3, 2014, reply to
Complainant's request to dismiss its appeal, the Agency maintains that it acted in good faith, and its failure to provide
interim relief simultaneously with its notice of appeal was inadvertent. The Agency also maintains that it subsequently
“cured” its noncompliance with EEO regulations by providing Complainant with a conditional offer of employment to
an LTSO position. The Agency further maintains that it did not comply with 29 C.F.R. § 1614.505(a)(4) because of “an
oversight and failure of communication between various offices of the Agency.”

Additionally, the Agency maintains that Complainant's motion to dismiss is untimely because Complainant did not file
it within 25 days of receiving the Agency's final order. Specifically, the Agency contends that it served Complainant
with a copy of its notice of appeal on January 17, 2014, but Complainant did not file his motion to dismiss until
February 18, 2014, which was beyond the 25-day time limit.

However, although the Agency's final order is dated January 17, 2014, the record contains evidence that Complainant's
attorney received it on January 24, 2014. A copy of a certified-mail return-receipt card in the complaint file shows that
Complainant's attorney's office signed for the final order on January 24, 2014. We note that when a complainant is
represented by an attorney, time frames for receipt of materials are computed from the time of receipt by the attorney.
29 C.F.R. § 1614.605(d). In this case, the Agency's final order contains a Certificate of Service stating that on January
17, 2014, the order was sent to Complainant's attorney via certified mail.

*3 As evidenced by the return-receipt card, the final order was received by Complainant's attorney on January 24, 2014.
According to 29 C.F.R. § 1614.505(b), Complainant had 25 days thereafter to file his motion to dismiss with the
Commission. The twenty-fifth day after January 24, 2014, was Tuesday, February 18, 2014. Thus, Complainant's filing
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of his motion to dismiss on February 18, 2014, was timely.

The Agency maintains that its failure to comply with 29 C.F.R. § 1614.505(a)(1) should be excused because it
eventually offered Complainant interim placement into an LTSO position, and its failure to comply was due to an
oversight and lack of communication between Agency offices. However, we do not find that these excuses sufficient
justification to warrant a waiver of the applicable regulations. Consequently, the Agency's appeal is hereby
DISMISSED. See Wilkinson v. Social Security Administration, EEOC Appeal No. 07A50089 (Sept. 29, 2005) (agency
appeal dismissed when agency failed to provide complainant with reinstatement ordered by the AJ at time it issued its
final order).

Finally, we note that Complainant contends that he “appeals every point of the Final Order of the Agency that does not
fully implement the Administrative Judge's Hearing Decision.” Complainant does not contest any aspect of the AJ's
decisions. Because the Agency's appeal is dismissed, the AJ's decisions on this matter are upheld. The Commission
REMANDS this matter to the Agency for further actions consistent with this decision and the Order set forth below. 2
ORDER

To the extent that it has not already done so, the Agency shall undertake the following actions:
1. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall make Complainant a
formal, written unconditional3 offer of placement into at least one of the following assignments/positions: (1) Checkpoint
Ticket and Document Checker, along with Exit Lane Monitor if necessary, (2) Checked Baggage Office Administrative
Assistant, or (3) a substantially equivalent position within his medical restrictions, no later than thirty (30) calendar days
from the date this decision becomes final.
2. The Agency shall determine and pay Complainant the appropriate amount of back pay, with interest, and other
benefits due to him, pursuant to 29 C.F.R. § 1614.501. 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.
Complainant's earnings from other employment during the relevant time period will be subtracted from the gross back
pay, as will his workers' compensation lost wage earnings payment. Goldberg v. Dep't of State, EEOC Appeal No.
0420100006 (Sept. 23, 2011); Siu v. Dep't of Justice, EEOC Appeal No. 0720070040 (Apr. 28, 2009). If information
about Complainant's earnings from other employment and worker's compensation wage replacement earnings are not
directly available to the Agency, Complainant shall cooperate with the Agency to provide the information within thirty
(30) days after this decision becomes final.
*4 If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to
Complainant for the undisputed amount within sixty (60) calendar days of the date this decision becomes final.
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.” Determine the appropriate amount of back pay, with interest, and other
benefits due Complainants, pursuant to 29 C.F.R. § 1614.501.
3. The Agency shall pay Complainant for any increased tax burden incurred because of the back pay award within sixty
(60) calendar days of receipt of Complainant's documentation proving the increased burden. To obtain payment for the
increased income tax burden, Complainant shall provide to the Agency detailed documentation establishing the
increased income tax burden no later than sixty (60) calendar days after receipt of the Agency's documentation on back
pay and interest.
4. The Agency shall pay Complainant $2,000 in non-pecuniary compensatory damages within thirty (30) calendar days
after this decision becomes final.
5. The Agency shall pay Complainant $76,750 in attorney's fees.

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6. The Agency shall henceforth provide all employees with reasonable accommodations for their disabilities, including
through light and limited duty assignments, in accordance with the Rehabilitation Act, this decision, and other binding
applicable Commission precedent.
7. Within one hundred twenty (120) calendar days after the date this decision becomes final, the Agency shall provide
the Agency's Director of Workers' Compensation Programs involved in this case with at least two hours of in-person
training. The training shall focus on the interplay of worker's compensation and the Rehabilitation Act with regard to
providing reasonable accommodations, the overall law regarding reasonable accommodation, and the provision of
light/limited duty as a reasonable accommodation. The Agency shall retain and provide to the Commission documents
regarding the following: the name and resume of the trainer, a copy of the written training materials, and signed
verification of the attendance of the Director of Workers' Compensation Programs.
8. Within one hundred twenty (120) calendar days after the date this decision becomes final, the Agency shall issue a
memorandum to all its managers and supervisors at the McCarran International Airport in Nevada. The memorandum
shall inform managers/supervisors that they could be disciplined for terminating employees with a disability because
of their medical restrictions when that employee is qualified to be reasonably accommodated through reassignment.
9. The Agency shall post notices in accordance with the paragraph below.

POSTING ORDER (G0914)

*5 The Agency is ordered to post at its McCarran International Airport facilities (Agency Administrative Offices,
including baggage screening offices, and all other Agency offices at McCarran International Airport) 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.
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 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
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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)

*6 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 (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 (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).

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FOR THE COMMISSION:
*7 Carlton M. Hadden
Director
Office of Federal Operations
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.

Footnotes
2

The Order set forth herein reflects the relief ordered by the AJ in her December 19, 2013, decision.

3

We note that the Agency's late offer of reinstatement dated February 28, 2014, conditionally offered Complainant a position as a Lead
Transportation Security Officer. Complainant argued in his March 7, 2014, brief, that this offer does not comply with the remedies
and relief provisions at 29 C.F.R. § 1614.501. However, under the interim relief provision at 29 C.F.R. § 1614.505(a)(1), the Agency
was only required to offer “temporary or conditional restoration” pending the outcome of the Agency's appeal. Now that the Agency's
appeal has been adjudicated, the regulation at 29 C.F.R. § 1614.501(a)(3) controls and the offer shall be unconditional.

EEOC DOC 0720140018 (E.E.O.C.), 2016 WL 1085202
End of Document

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