In a recent decision, the EEOC held that the Transportation Security Administration breached a settlement agreement with a former security officer when it did not give him the same opportunity to pass a medical exam that it gave other applicants. Brooks v. Department of Homeland Security, EEOC Appeal No. 0120061417 (9/29/09).

In 2003, the employee filed an EEO complaint alleging he was discriminated against when he was terminated from his position as a TSA security officer. In 2004, the employee was diagnosed with diabetes, but his illness was unrelated to his allegations of discrimination. In 2005, the parties reached a settlement agreement in which the agency agreed to reinstate the employee on the condition he take the TSA "Phase 2 Screener Assessment," which included a medical evaluation that the employee was required to pass all components. The employee failed a portion of the medical evaluation test because his diabetes caused his blood sugar level to be below the agency’s standard. Accordingly, the agency refused to reinstate the employee.

The employee notified the agency that he believed it was in breach of the settlement agreement because the agency knew he had diabetes, and therefore, knew he would not have been able to pass the medical portion of the test concerning the required blood sugar level. The agency did not respond; thus, the employee filed an appeal with the EEOC Office of Federal Operations alleging that the agency breached the settlement agreement by affixing a term to the settlement that the agency knew the employee could not have achieved. The EEOC remanded the matter to an administrative judge for a hearing to determine whether the agency applied the standard in a disparate manner toward the employee, and whether the agency would have resolved the situation differently with the employee if he had been employed when the diabetes was diagnosed.

TSA screeners already employed by the agency did not have to take the Phase 2 assessment, but applicants for the same position were required to pass the evaluation. However, if applicants did not meet the agency’s medical guidelines, they were given 65 days to show medical proof of their ability to meet the standard. Accordingly, the AJ held that the employee was treated differently than other screener applicants who failed the Phase 2 Assessment because the employee here was not given an extra 65 days to show medical proof that he could meet the agency’s guidelines for diabetes.

Also, the AJ found that the agency would have definitely resolved the matter differently if the employee were still employed, because if the employee were never terminated, which was the underlying issue in his EEO complaint, he would have never been required to take the Phase 2 Assessment. Consequently, the agency would have only discovered that the employee had diabetes if he chose to notify the agency, which likely would have only occurred if he requested a reasonable accommodation. Further, if the employee would have requested a reasonable accommodation for his diabetes, there was no evidence that he was not able to perform the essential functions of his job; thus, the employee would not have been terminated. Accordingly, the AJ ruled that the agency must restore the employee to "a position where he would have been were it not for unlawful discrimination." Additionally, the AJ ordered the agency to give the employee at least 65 days from the date of the decision to submit medical documentation showing compliance with the standard for diabetes.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com