TSA Management at SMF Says Pregnant Screener Can't Work
An open letter to FSD Ron Pelayo, DHS Inspector GeneralThe Transportation Security
Administration management officials at Sacramento International Airport have done it again. A Lead Transportation Security Screener at the airport was on light duty status as a result of her doctor's recommendation due to her medical condition, a high risk pregnancy.
The Lead Screener was assigned to Terminal B, the slower of Sacramento's two terminals, and was working productively, well within her physician-recommended restrictions. But then, things changed and TSA management went back on its word and refused to let the screener work even though she is perfectly able to do so.
The following is an open letter sent to Federal Security Director Ron Pelayo about his managers' refusal to allow the screener to work and other issues surrounding their arbitrary decision. A copy was also sent to the DHS Inspector General for review.
=================================================
Mark Arsenault [Contact info deleted]
Ron Pelayo Federal Security Director, TSA Sacramento International Airport 6900 Airport Blvd Sacramento, CA 95837 Via Fax: (916) 928-2192
April 20, 2005 FSD Ron Pelayo:
I am writing to express my concern about the way that my wife's light duty assignment has been handled and to ask you to look into possible misconduct by TSA management and HR officials under you at Sacramento International Airport.
1. BACKGROUND
Lead Transportation Security Screener Margaret Arsenault has been on light duty for several months due to her medical condition (as documented in medical paperwork possessed by your office).
2. LIGHT DUTY EXTENSION EXPIRED SAME DAY OF SCHEDULED DEPOSITIONS
A recent light duty "contract," dated February 23, 2005, was set to expire on March 2, 2005. My understanding of AVO 400.30.11 Light Duty Assignments for Screeners is that light duty extensions may be granted for 45 days at a time. For some reason, my wife's light duty contract was extended for only about a week and, coincidentally, it was set to expire at about the same time that depositions were scheduled to begin in my wife's EEO case (EEOC No. 370-2005-00014X, Agency No. TSAF-03-1036).
On February 23, 2005, my wife was told by HR Rep Bud Angel that when that light duty contract expired on March 2, 2005, that my wife would be required to "return to full duty or stay home."
3. REQUEST FOR DENIAL IN WRITING REFUSED
The next day Margaret spoke with HR Rep Bud Angel and asked for something in writing to indicating that her light duty contract could not — or would not — be extended and Mr. Angel told her that her light duty contract "is all you're going to get."
4. LIGHT DUTY EXTENSION EXPIRED DURING RESCHEDULED DATES OF DEPOSITIONS
After sending you a letter (via fax) on February 28, 2005, my wife's light duty contract was extended, even though she was told by HR that it couldn't be extended.
The latest light duty contract, however, was only extended until March 25, 2005 — a mere 23 days, not 45 days as allowed per AVO 400.30.11. In addition, the date of expiration again coincides with the rescheduled start of depositions in my wife's EEO case. I find that to be an incredible coincidence, especially when considering the allegations of past misconduct and retaliation against my wife (detailed in her EEO complaint).
5. MANAGEMENT REQUESTS ADDITIONAL, DUPLICATIVE MEDICAL DOCUMENTATION
What's more, my wife was told that in order to extend her light duty assignment beyond March 25, 2005, she would need to provide yet more medical paperwork from her physician to support her request. My wife has already submitted paperwork from her physician indicating that she is on light duty for a "serious condition" (a high-risk pregnancy) which is expected to continue to her estimated delivery date of June 15 or 16, 2005. Furthermore, that documentation contains all of the information required by TSA and further indicates that the condition is covered under the Family Medical Leave Act.
According to TSA policy, "Employees may be asked to provide additional information if medical certification is unclear or does not indicate that the employee is incapacitated for duty" (HRM Letter 630-3). The documentation provided by Margaret would not seem to be "unclear," as no questions were raised about it since it was first submitted. If the documentation has been sufficient in the past, why, then, was it not sufficient for this extension?
Margaret subsequently provided yet more medical documentation (on or about March 23, 2005) to substantiate her light duty extension, even though her condition (high-risk pregnancy) has an obvious duration of 9 months, with a projected delivery date on or about June 16th. Please note that Margaret never received a light duty contract after the one with an expiration date of March 25.
After reviewing TSA's own policy on the issue of light duty and being intimately familiar with the circumstances surrounding her EEO case, I find it very difficult to believe that the TSA truly requires duplicative paperwork from my wife to substantiate a condition that has not only been documented (several times) but which common sense would indicate will not "end" until her delivery. Why, then, would your management staff require even more paperwork from my wife and why would they only extend her light duty contract until the depositions in her case were scheduled to begin?
6. UNREASONABLE SCHEDULE BID "WINDOW"
Most recently, a new "schedule bid" was conducted at Sacramento International Airport (in or about the week of March 24th), in which each employee would have a 5 minute window of opportunity to submit a bid for their desired regular days off (RDO). Margaret's "scheduled time to bid" was 6:10 a.m. Margaret at the time worked a 12 Noon to 9 p.m. shift.
I don't need to tell you how ludicrous and unreasonable this "mandate" from your management staff is, do I? If the shift bid is being conducted using a seniority basis, surely there is a better way for screeners to submit their bids other than to have a "five minute window" in the middle of their off-duty time to do so.
As it turns out, Margaret was able to submit her bid early, because she was out for depositions on her EEO case against the TSA. Her bid request was for Thursday, Friday and Saturday off and did, in fact, receive those days off. Her schedule was changed to Fridays and Saturdays off, however, to accommodate her light duty contract (of 5 days at 8 hours per day).
7. SCHEDULE BID RESULTS IN TRANSFER TO BUSY TERMINAL
As a result of the bid, however, Margaret was reassigned to a different terminal (from B-2 to A). As you no doubt are aware, Terminal A is a much busier terminal, and the pace was causing issues with Margaret's duty restrictions. Specifically, Margaret was getting exhausted and the work load was causing additional stress and severe back pains. Margaret has submitted numerous documents from her medical provider (Kaiser Permanente), including formal documentation identifying Margaret as having a "serious medical condition" (high-risk pregnancy) that is covered under the Family Medical Leave Act.
In case you are unaware of some of the differences between work assignments at Terminal B and Terminal A, Margaret has identified the following:
Terminal A / Terminal B Leads are not in rotation / Leads are in rotation Multiple lanes (3-4 open on p.m.) / 1 lane Leads don't sit at Exit / Leads do sit at Exit Leads don't sit at X-Ray / Leads do sit at X-Ray Steady busy pace; no time to sit/study / Slower pace; time avail, to sit/study Leads resolve many alarms / Seldom any alarms to resolve Leads give numerous prohibs options / Seldom have prohibs
8. MARGARET ONLY LEAD SCREENER ON TERMINAL A P.M. SHIFT
It's also interesting to note that out of 30+ Lead Transportation Security Screeners, Margaret was the only LTSS assigned to Terminal A checkpoint on p.m. shift for 4 out of 5 of her assigned work days. Moving Margaret - and no other Lead Screeners - to Terminal A appears to be in retaliation.
9. SO REQUIRES MEDICAL DOCUMENT TO REASSSIGN MARGARET TO B
On or about April 4th or 5th, Margaret spoke with Scheduling Officer Dale (unk last name) and requested she be moved back to Terminal B. At that time, Dale told Margaret that he could move her back to Terminal B but that he would need to have yet another document from her physician indicating that Margaret would need to work "a slower pace."
Margaret contacted her physician's office shortly thereafter and a document was faxed to TSAHR later that week.
10. MARGARET SUFFERS MEDICAL SYMPTOMS AS A RESULT OF WORKING T-A
On Thursday, April 7th, Margaret was working at Terminal A and began suffering from back pain, cramps, and contractions (20 minutes apart). On the advice of her physician, Margaret left work early and went home sick. After speaking with the Kaiser Advice Nurse via telephone, Margaret was advised that the symptoms were brought on as a result of her increased work load.
11. REQUEST FOR ACCOMODATION/REASSIGNMENT TO T-B DENIED
On or about April 8th, 2005, HR Specialist Bud Angel called Margaret at home and told her that TSA would not be able to accommodate her light duty.
12. REQUEST FOR DENIAL IN WRITING DENIED
During this conversation, Margaret requested this decision be provided to her in writing, to which Mr. Angel responded "We don't normally do it in writing but I'll talk to someone and see what I can do."
I find it interesting that your staff would refuse to provide responses to light duty and/or modification requests not once but twice, when AVO 400.30.11 specifically requires denials be in writing. What's more, if "operation need" were an important factor in your staffs decisions regarding Margaret's work assignment, it would seem quite feasible to move one of the more than 30 other Lead Screeners to work her assignment so that she could work at Terminal B, where she had been working successfully for some time.
13. MARGARET PLACED ON LEAVE WITHOUT PAY STATUS
As a result of your staffs decision not to accommodate Margaret's request for transfer to Terminal B, Margaret has since been on Leave Without Pay status.
The fact of the matter is that, even with the medical restrictions ordered by her physician, Margaret is fully capable of working productively at Terminal B. It should be noted that during her entire time on light duty, Margaret has never been assigned to an administrative or other "sit down" or "office" job, even though this is fully within the ability of TSA to provide, as your staff has done for at least one other pregnant female screener at SMF in the past.
14. REQUEST FOR COPY OF DOCUMENT DELAYED ONE WEEK
Subsequent to being placed on Leave Without Pay status, Margaret requested a copy of the medical form that was submitted to TSA HR from her medical provider. The medical provider was unable to locate the document and Margaret had yet to see it. She requested a copy of the form be faxed to her by TSA HR.
Margaret called and left a message on Lisa's voicemail on or about Monday or Tuesday, April 11th or 12th. It was not until the afternoon of Tuesday, April 19 - a week later - that Margaret received a copy of her last light duty contract (March 3-March 25, 2005) via facsimile. It was not the form that Margaret had requested.
Margaret called and left another message and subsequently called HR on Wednesday, April 20, and spoke with HR Specialist Bud Angel. She told him that she received the light duty contract but that she had requested the medical form that Kaiser has sent to HR. Mr. Angel told Margaret that the form was not "readily available" and was in some "piles of paperwork" that "needed to be filed first" before it could be located.
We did finally receive a facsimile of the requested document, which was sent from HR at 3:56 p.m. on April 20, 2005. A copy of the document is attached for your review.
15. MARGARET ABLE TO WORK WITH RESTRICTIONS
Please note that the restrictions indicated on the medical form would still enable Margaret to work at Terminal B, as she has described the requirements of that work assignment to me. TSA's "operational need" would seem to suggest that you can use every person available to fill positions, even if it means assigning Margaret to Terminal B.
16. ACTIONS BY MANAGEMENT CAUSING UNDUE STRESS, CONSTITUTE RETALIATION
I believe that the actions by the aforementioned managers are intended to cause unnecessary stress and inconvenience on my wife, the ultimate affects of which could go far beyond just her ability to work; it could affect her personal health. In fact, the decisions of your staff have already begun to have an adverse effect on Margaret, as indicated earlier. We feel that these actions and decisions on the part of your staff constitute retaliation against Margaret for her protected EEO activity (filing an EEO complaint on March 31, 2003).
This has been an ongoing concern and the discriminatory and retaliatory acts against Margaret by your staff continue to mount. I find mis to be outrageous behavior and harassment that violates TSA's "Zero Tolerance Policy" against sexual harassment and retaliation, as well as other TSA policies, federal law, professional ethics and simple morality.
17. TSA "ZERO TOLERANCE POLICY" VIOLATED
In a policy statement letter, dated April 7, 2004, (then) Acting Administrator David M. Stone wrote: "TSA's greatest asset is its talented and dedicated employees" and that the "TSA will ensure that all employees... are treated in a lawful, nondiscriminatory manner without regard to race, color, national original, religion, age, gender, disability, parental status, or genetic information. In addition, TSA will ensure that any barriers to equal employment opportunity are removed." Further, in the same letter, Stone wrote: "At TSA, mere is zero tolerance for harassment in the workplace and in the delivery of its services. Harassment can create a hostile, offensive, or otherwise intimidating environment for employees and the public, and will not be tolerated" (emphasis mine).
18. FEDERAL LAW REQUIRES REASONABLE ACCOMMODATION
According to the U.S. Office of Personnel Management, the Rehabilitation Act of 1973. as amended, protects qualified employees and applicants with disabilities in the Executive Branch of the Federal government from employment discrimination based on disability. Further, it requires Federal agencies to provide reasonable accommodation for known physical or mental limitations of qualified employees and applicants, unless to do so would cause undue hardship.
I find it unlikely that reassigning Margaret to Terminal B would "impose an undue hardship (defined by OPM as an action that requires "significant difficulty or expense") on [TSA's] everyday operations."
19. DENIALS MUST BE IN WRITING
I would also like to bring to your attention that the U.S. Office of Personnel management indicates that "All denials of reasonable accommodation requests must be made in writing, and the decision must specify the reason for the denial. The denial should be written in plain language, clearly stating the specific reasons for the denial. After denying a request, the individual must be informed that s/he has the right to file an EEO complaint, has the right to pursue any applicable union grievance and informal alternative dispute resolution."
Further, AVO 400.30.11 specifically requires denials be in writing.
Clearly, your staff's refusal to provide their denial to Margaret's request for accommodation in writing would seem to be not only unethical and a violation of TSA policy, but also a violation of other federal laws, as well.
20. DISCRIMINATION ON BASIS OF PREGNANCY UNLAWFUL
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. According to the Act, "Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers ... the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations."
As I'm sure you know, 5 U.S.C. Section 2302(c) requires federal agency heads, and officials with delegated authority for any aspect of personnel management, to: prevent prohibited personnel practices, including reprisal for whistleblowing; comply with and enforce civil service laws, rules and regulations" (source: US. Office of Special Counsel).
21. AWARENESS OF ISSUES
I am of the impression that you were not aware of the situation involving my wife's light duty status until receipt of her letter, dated Febraury 28, 2005. This may or may not be the case, but other recent events lead me to believe that there are a number of things being done by management officials beneath you that you are not aware of (such as the recent issue involving the 4/10 schedule for screeners and HR's denial of Margaret's request for accommodation - which was requested by the scheduling officer).
I appreciate that you seem to be resolving issues that have plagued SMF since long before your arrival to replace FSD William Wade. By all accounts mere have been a number of actions and omissions by TSA management at SMF that have caused unnecessary hardship on the screeners there, including actions and omissions that, as they have been described to me, would seem to violate TSA policy and federal law. The things I mentioned above are only the tip of the iceberg. There is so much more.
22. REMEDIES
I respectfully request that you:
Authorize an extension of my wife's light duty contract to June 16, 2005, without requiring her to submit additional, duplicative documentation from her physician unless changes in her condition warrant a modification to her light duty status.
Authorize reassignment of Margaret to Terminal B.
Convert Margaret's "Leave Without Pay" status from April 8 until she is reinstated to light duty to paid Administrative Leave, as a result of management's inappropriate denial of her request for accommodation.
Authorize Margaret to deal directly with you regarding issues surrounding her light duty status. Past interactions with other management officials at SMF have been less than fruitful and on several occasions my wife has been lied to by your staff, denied requests for decisions in writing, and so on. We further request that you provide a direct telephone number to your office, as Margaret has been unsuccessful in her attempts to obtain same.
Direct or request an investigation of the TSA management staff at SMF for inappropriate conduct, mismanagement, retaliation and violations of TSA policies. I request that this investigation be conducted by the TSA Office of Internal Affairs (OIA), and that any such investigation be conducted in a manner that allows the investigator free access to all screening staff (to include Supervisory Transportation Security Screeners, Lead Transportation Security Screeners, and Transportation Security Screeners) without encumbrance, interference or influence by TSA management officials at SMF.
Respond to this letter in writing, via mail or facsimile. I would be happy to schedule a time to meet with you to discuss these and other issues plaguing your airport. In addition, I have copies of the transcripts of depositions by some of your staff (re: Margaret's EEO case) which I think you would find quite enlightening. I would be happy to share those with you if you don't already have them.
Thank you for your time and consideration. It is my sincere hope that these issues can be dealt with in a positive, professional and timely manner.
Respectfully,
/ Signed / Mark T. Arsenault Representative
Encl: Original letter to FSD Pelayo, dated February 28, 2005 Offer of Light Duty Assignment, dated March 3, 2005 Visit Verification/Family Medical Leave Health Care Provider Certification, dated April 5, 2005 TSA Civil Rights Policy Statement by David M. Stone, dated April 4, 2004.
cc: Depart, of Homeland Security, Office of the Inspector General HotLine (via facsimile, to 202-254-4292) TSA Office of Civil Rights (via e-mail, to TSA.CivilRights@dhs.gov) Gony Frieder, AFGE Office of General Counsel (via facsimile, to 202-639-6441)
An open letter to FSD Ron Pelayo, DHS Inspector GeneralThe Transportation Security
Administration management officials at Sacramento International Airport have done it again. A Lead Transportation Security Screener at the airport was on light duty status as a result of her doctor's recommendation due to her medical condition, a high risk pregnancy.
The Lead Screener was assigned to Terminal B, the slower of Sacramento's two terminals, and was working productively, well within her physician-recommended restrictions. But then, things changed and TSA management went back on its word and refused to let the screener work even though she is perfectly able to do so.
The following is an open letter sent to Federal Security Director Ron Pelayo about his managers' refusal to allow the screener to work and other issues surrounding their arbitrary decision. A copy was also sent to the DHS Inspector General for review.
=================================================
Mark Arsenault [Contact info deleted]
Ron Pelayo Federal Security Director, TSA Sacramento International Airport 6900 Airport Blvd Sacramento, CA 95837 Via Fax: (916) 928-2192
April 20, 2005 FSD Ron Pelayo:
I am writing to express my concern about the way that my wife's light duty assignment has been handled and to ask you to look into possible misconduct by TSA management and HR officials under you at Sacramento International Airport.
1. BACKGROUND
Lead Transportation Security Screener Margaret Arsenault has been on light duty for several months due to her medical condition (as documented in medical paperwork possessed by your office).
2. LIGHT DUTY EXTENSION EXPIRED SAME DAY OF SCHEDULED DEPOSITIONS
A recent light duty "contract," dated February 23, 2005, was set to expire on March 2, 2005. My understanding of AVO 400.30.11 Light Duty Assignments for Screeners is that light duty extensions may be granted for 45 days at a time. For some reason, my wife's light duty contract was extended for only about a week and, coincidentally, it was set to expire at about the same time that depositions were scheduled to begin in my wife's EEO case (EEOC No. 370-2005-00014X, Agency No. TSAF-03-1036).
On February 23, 2005, my wife was told by HR Rep Bud Angel that when that light duty contract expired on March 2, 2005, that my wife would be required to "return to full duty or stay home."
3. REQUEST FOR DENIAL IN WRITING REFUSED
The next day Margaret spoke with HR Rep Bud Angel and asked for something in writing to indicating that her light duty contract could not — or would not — be extended and Mr. Angel told her that her light duty contract "is all you're going to get."
4. LIGHT DUTY EXTENSION EXPIRED DURING RESCHEDULED DATES OF DEPOSITIONS
After sending you a letter (via fax) on February 28, 2005, my wife's light duty contract was extended, even though she was told by HR that it couldn't be extended.
The latest light duty contract, however, was only extended until March 25, 2005 — a mere 23 days, not 45 days as allowed per AVO 400.30.11. In addition, the date of expiration again coincides with the rescheduled start of depositions in my wife's EEO case. I find that to be an incredible coincidence, especially when considering the allegations of past misconduct and retaliation against my wife (detailed in her EEO complaint).
5. MANAGEMENT REQUESTS ADDITIONAL, DUPLICATIVE MEDICAL DOCUMENTATION
What's more, my wife was told that in order to extend her light duty assignment beyond March 25, 2005, she would need to provide yet more medical paperwork from her physician to support her request. My wife has already submitted paperwork from her physician indicating that she is on light duty for a "serious condition" (a high-risk pregnancy) which is expected to continue to her estimated delivery date of June 15 or 16, 2005. Furthermore, that documentation contains all of the information required by TSA and further indicates that the condition is covered under the Family Medical Leave Act.
According to TSA policy, "Employees may be asked to provide additional information if medical certification is unclear or does not indicate that the employee is incapacitated for duty" (HRM Letter 630-3). The documentation provided by Margaret would not seem to be "unclear," as no questions were raised about it since it was first submitted. If the documentation has been sufficient in the past, why, then, was it not sufficient for this extension?
Margaret subsequently provided yet more medical documentation (on or about March 23, 2005) to substantiate her light duty extension, even though her condition (high-risk pregnancy) has an obvious duration of 9 months, with a projected delivery date on or about June 16th. Please note that Margaret never received a light duty contract after the one with an expiration date of March 25.
After reviewing TSA's own policy on the issue of light duty and being intimately familiar with the circumstances surrounding her EEO case, I find it very difficult to believe that the TSA truly requires duplicative paperwork from my wife to substantiate a condition that has not only been documented (several times) but which common sense would indicate will not "end" until her delivery. Why, then, would your management staff require even more paperwork from my wife and why would they only extend her light duty contract until the depositions in her case were scheduled to begin?
6. UNREASONABLE SCHEDULE BID "WINDOW"
Most recently, a new "schedule bid" was conducted at Sacramento International Airport (in or about the week of March 24th), in which each employee would have a 5 minute window of opportunity to submit a bid for their desired regular days off (RDO). Margaret's "scheduled time to bid" was 6:10 a.m. Margaret at the time worked a 12 Noon to 9 p.m. shift.
I don't need to tell you how ludicrous and unreasonable this "mandate" from your management staff is, do I? If the shift bid is being conducted using a seniority basis, surely there is a better way for screeners to submit their bids other than to have a "five minute window" in the middle of their off-duty time to do so.
As it turns out, Margaret was able to submit her bid early, because she was out for depositions on her EEO case against the TSA. Her bid request was for Thursday, Friday and Saturday off and did, in fact, receive those days off. Her schedule was changed to Fridays and Saturdays off, however, to accommodate her light duty contract (of 5 days at 8 hours per day).
7. SCHEDULE BID RESULTS IN TRANSFER TO BUSY TERMINAL
As a result of the bid, however, Margaret was reassigned to a different terminal (from B-2 to A). As you no doubt are aware, Terminal A is a much busier terminal, and the pace was causing issues with Margaret's duty restrictions. Specifically, Margaret was getting exhausted and the work load was causing additional stress and severe back pains. Margaret has submitted numerous documents from her medical provider (Kaiser Permanente), including formal documentation identifying Margaret as having a "serious medical condition" (high-risk pregnancy) that is covered under the Family Medical Leave Act.
In case you are unaware of some of the differences between work assignments at Terminal B and Terminal A, Margaret has identified the following:
Terminal A / Terminal B Leads are not in rotation / Leads are in rotation Multiple lanes (3-4 open on p.m.) / 1 lane Leads don't sit at Exit / Leads do sit at Exit Leads don't sit at X-Ray / Leads do sit at X-Ray Steady busy pace; no time to sit/study / Slower pace; time avail, to sit/study Leads resolve many alarms / Seldom any alarms to resolve Leads give numerous prohibs options / Seldom have prohibs
8. MARGARET ONLY LEAD SCREENER ON TERMINAL A P.M. SHIFT
It's also interesting to note that out of 30+ Lead Transportation Security Screeners, Margaret was the only LTSS assigned to Terminal A checkpoint on p.m. shift for 4 out of 5 of her assigned work days. Moving Margaret - and no other Lead Screeners - to Terminal A appears to be in retaliation.
9. SO REQUIRES MEDICAL DOCUMENT TO REASSSIGN MARGARET TO B
On or about April 4th or 5th, Margaret spoke with Scheduling Officer Dale (unk last name) and requested she be moved back to Terminal B. At that time, Dale told Margaret that he could move her back to Terminal B but that he would need to have yet another document from her physician indicating that Margaret would need to work "a slower pace."
Margaret contacted her physician's office shortly thereafter and a document was faxed to TSAHR later that week.
10. MARGARET SUFFERS MEDICAL SYMPTOMS AS A RESULT OF WORKING T-A
On Thursday, April 7th, Margaret was working at Terminal A and began suffering from back pain, cramps, and contractions (20 minutes apart). On the advice of her physician, Margaret left work early and went home sick. After speaking with the Kaiser Advice Nurse via telephone, Margaret was advised that the symptoms were brought on as a result of her increased work load.
11. REQUEST FOR ACCOMODATION/REASSIGNMENT TO T-B DENIED
On or about April 8th, 2005, HR Specialist Bud Angel called Margaret at home and told her that TSA would not be able to accommodate her light duty.
12. REQUEST FOR DENIAL IN WRITING DENIED
During this conversation, Margaret requested this decision be provided to her in writing, to which Mr. Angel responded "We don't normally do it in writing but I'll talk to someone and see what I can do."
I find it interesting that your staff would refuse to provide responses to light duty and/or modification requests not once but twice, when AVO 400.30.11 specifically requires denials be in writing. What's more, if "operation need" were an important factor in your staffs decisions regarding Margaret's work assignment, it would seem quite feasible to move one of the more than 30 other Lead Screeners to work her assignment so that she could work at Terminal B, where she had been working successfully for some time.
13. MARGARET PLACED ON LEAVE WITHOUT PAY STATUS
As a result of your staffs decision not to accommodate Margaret's request for transfer to Terminal B, Margaret has since been on Leave Without Pay status.
The fact of the matter is that, even with the medical restrictions ordered by her physician, Margaret is fully capable of working productively at Terminal B. It should be noted that during her entire time on light duty, Margaret has never been assigned to an administrative or other "sit down" or "office" job, even though this is fully within the ability of TSA to provide, as your staff has done for at least one other pregnant female screener at SMF in the past.
14. REQUEST FOR COPY OF DOCUMENT DELAYED ONE WEEK
Subsequent to being placed on Leave Without Pay status, Margaret requested a copy of the medical form that was submitted to TSA HR from her medical provider. The medical provider was unable to locate the document and Margaret had yet to see it. She requested a copy of the form be faxed to her by TSA HR.
Margaret called and left a message on Lisa's voicemail on or about Monday or Tuesday, April 11th or 12th. It was not until the afternoon of Tuesday, April 19 - a week later - that Margaret received a copy of her last light duty contract (March 3-March 25, 2005) via facsimile. It was not the form that Margaret had requested.
Margaret called and left another message and subsequently called HR on Wednesday, April 20, and spoke with HR Specialist Bud Angel. She told him that she received the light duty contract but that she had requested the medical form that Kaiser has sent to HR. Mr. Angel told Margaret that the form was not "readily available" and was in some "piles of paperwork" that "needed to be filed first" before it could be located.
We did finally receive a facsimile of the requested document, which was sent from HR at 3:56 p.m. on April 20, 2005. A copy of the document is attached for your review.
15. MARGARET ABLE TO WORK WITH RESTRICTIONS
Please note that the restrictions indicated on the medical form would still enable Margaret to work at Terminal B, as she has described the requirements of that work assignment to me. TSA's "operational need" would seem to suggest that you can use every person available to fill positions, even if it means assigning Margaret to Terminal B.
16. ACTIONS BY MANAGEMENT CAUSING UNDUE STRESS, CONSTITUTE RETALIATION
I believe that the actions by the aforementioned managers are intended to cause unnecessary stress and inconvenience on my wife, the ultimate affects of which could go far beyond just her ability to work; it could affect her personal health. In fact, the decisions of your staff have already begun to have an adverse effect on Margaret, as indicated earlier. We feel that these actions and decisions on the part of your staff constitute retaliation against Margaret for her protected EEO activity (filing an EEO complaint on March 31, 2003).
This has been an ongoing concern and the discriminatory and retaliatory acts against Margaret by your staff continue to mount. I find mis to be outrageous behavior and harassment that violates TSA's "Zero Tolerance Policy" against sexual harassment and retaliation, as well as other TSA policies, federal law, professional ethics and simple morality.
17. TSA "ZERO TOLERANCE POLICY" VIOLATED
In a policy statement letter, dated April 7, 2004, (then) Acting Administrator David M. Stone wrote: "TSA's greatest asset is its talented and dedicated employees" and that the "TSA will ensure that all employees... are treated in a lawful, nondiscriminatory manner without regard to race, color, national original, religion, age, gender, disability, parental status, or genetic information. In addition, TSA will ensure that any barriers to equal employment opportunity are removed." Further, in the same letter, Stone wrote: "At TSA, mere is zero tolerance for harassment in the workplace and in the delivery of its services. Harassment can create a hostile, offensive, or otherwise intimidating environment for employees and the public, and will not be tolerated" (emphasis mine).
18. FEDERAL LAW REQUIRES REASONABLE ACCOMMODATION
According to the U.S. Office of Personnel Management, the Rehabilitation Act of 1973. as amended, protects qualified employees and applicants with disabilities in the Executive Branch of the Federal government from employment discrimination based on disability. Further, it requires Federal agencies to provide reasonable accommodation for known physical or mental limitations of qualified employees and applicants, unless to do so would cause undue hardship.
I find it unlikely that reassigning Margaret to Terminal B would "impose an undue hardship (defined by OPM as an action that requires "significant difficulty or expense") on [TSA's] everyday operations."
19. DENIALS MUST BE IN WRITING
I would also like to bring to your attention that the U.S. Office of Personnel management indicates that "All denials of reasonable accommodation requests must be made in writing, and the decision must specify the reason for the denial. The denial should be written in plain language, clearly stating the specific reasons for the denial. After denying a request, the individual must be informed that s/he has the right to file an EEO complaint, has the right to pursue any applicable union grievance and informal alternative dispute resolution."
Further, AVO 400.30.11 specifically requires denials be in writing.
Clearly, your staff's refusal to provide their denial to Margaret's request for accommodation in writing would seem to be not only unethical and a violation of TSA policy, but also a violation of other federal laws, as well.
20. DISCRIMINATION ON BASIS OF PREGNANCY UNLAWFUL
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. According to the Act, "Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers ... the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations."
As I'm sure you know, 5 U.S.C. Section 2302(c) requires federal agency heads, and officials with delegated authority for any aspect of personnel management, to: prevent prohibited personnel practices, including reprisal for whistleblowing; comply with and enforce civil service laws, rules and regulations" (source: US. Office of Special Counsel).
21. AWARENESS OF ISSUES
I am of the impression that you were not aware of the situation involving my wife's light duty status until receipt of her letter, dated Febraury 28, 2005. This may or may not be the case, but other recent events lead me to believe that there are a number of things being done by management officials beneath you that you are not aware of (such as the recent issue involving the 4/10 schedule for screeners and HR's denial of Margaret's request for accommodation - which was requested by the scheduling officer).
I appreciate that you seem to be resolving issues that have plagued SMF since long before your arrival to replace FSD William Wade. By all accounts mere have been a number of actions and omissions by TSA management at SMF that have caused unnecessary hardship on the screeners there, including actions and omissions that, as they have been described to me, would seem to violate TSA policy and federal law. The things I mentioned above are only the tip of the iceberg. There is so much more.
22. REMEDIES
I respectfully request that you:
Authorize an extension of my wife's light duty contract to June 16, 2005, without requiring her to submit additional, duplicative documentation from her physician unless changes in her condition warrant a modification to her light duty status.
Authorize reassignment of Margaret to Terminal B.
Convert Margaret's "Leave Without Pay" status from April 8 until she is reinstated to light duty to paid Administrative Leave, as a result of management's inappropriate denial of her request for accommodation.
Authorize Margaret to deal directly with you regarding issues surrounding her light duty status. Past interactions with other management officials at SMF have been less than fruitful and on several occasions my wife has been lied to by your staff, denied requests for decisions in writing, and so on. We further request that you provide a direct telephone number to your office, as Margaret has been unsuccessful in her attempts to obtain same.
Direct or request an investigation of the TSA management staff at SMF for inappropriate conduct, mismanagement, retaliation and violations of TSA policies. I request that this investigation be conducted by the TSA Office of Internal Affairs (OIA), and that any such investigation be conducted in a manner that allows the investigator free access to all screening staff (to include Supervisory Transportation Security Screeners, Lead Transportation Security Screeners, and Transportation Security Screeners) without encumbrance, interference or influence by TSA management officials at SMF.
Respond to this letter in writing, via mail or facsimile. I would be happy to schedule a time to meet with you to discuss these and other issues plaguing your airport. In addition, I have copies of the transcripts of depositions by some of your staff (re: Margaret's EEO case) which I think you would find quite enlightening. I would be happy to share those with you if you don't already have them.
Thank you for your time and consideration. It is my sincere hope that these issues can be dealt with in a positive, professional and timely manner.
Respectfully,
/ Signed / Mark T. Arsenault Representative
Encl: Original letter to FSD Pelayo, dated February 28, 2005 Offer of Light Duty Assignment, dated March 3, 2005 Visit Verification/Family Medical Leave Health Care Provider Certification, dated April 5, 2005 TSA Civil Rights Policy Statement by David M. Stone, dated April 4, 2004.
cc: Depart, of Homeland Security, Office of the Inspector General HotLine (via facsimile, to 202-254-4292) TSA Office of Civil Rights (via e-mail, to TSA.CivilRights@dhs.gov) Gony Frieder, AFGE Office of General Counsel (via facsimile, to 202-639-6441)
posted by Mr Farnham at 4:22 PM
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