Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Washington, DC 20528

March 4, 2015 Via e-mail [email protected] RE: Complaint No. TSA-13-0397 Dear Mr. Sai: The U.S. Department of Homeland Security (DHS), Office for Civil Rights and Civil Liberties (CRCL), received your complaint from the Transportation Security Administration (TSA), concerning your passenger screening experience at Logan International Airport (BOS) on January 21, 2013. CRCL is charged with reviewing and making findings of fact and conclusions of law with respect to disability-related complaints that raise or allege discriminatory conduct, practices, or policies by TSA that could violate Section 504. Your complaint was initially forwarded for review to TSA’s Disability and Multicultural Division (DMD), a division within TSA’s Office of Civil Rights & Liberties, Ombudsman and Traveler Engagement (OCRL/OTE), because it raises potential allegations of disability discrimination under Section 504 of the Rehabilitation Act of 19731 (referred to as “Section 504”). OCLR conducted an investigation into your complaint. Your complaint was subsequently forwarded to CRCL for review and decision. CRCL processes complaints pursuant to DHS regulations implementing Section 504.2 We have completed our review of your complaint and have concluded that TSA did not discriminate against you on the basis of your disability in violation of Section 504. CRCL’s findings of fact, conclusions of law, description of remedies (if applicable) and notice of rights to appeal are set forth below as required under DHS regulations. A. Summary of Your Complaint In a complaint dated January 29, 2013, you allege that TSA, and two supervisors individually, violated your rights “in multiple ways” during your screening at a BOS checkpoint on January 21, 2013.3 You state that throughout your screening at BOS, you were physically unable to speak due to an episodic neurological disability, a non-Tourette’s tic disorder that occasionally results in episodes of speech impairment, referred to as “episodic mutism.” During your screening at BOS on January 21, 1

29 U.S.C. § 794, as amended. “Enforcement of Non-discrimination on the Basis of Disability in Programs or Activities Conducted by the Department of Homeland Security,” 6 C.F.R. Part 15. 3 This decision will only address the allegations in your complaint pertaining to disability discrimination under Section 504 of the Rehabilitation Act. 2

2013, you communicated through a combination of means, including using American Sign Language, mouthing, and writing. At the beginning of your screening, you placed your items – a large jacket, laptop bag, and backpack – on the x-ray machine belt. You indicated to a nearby TSA agent that you wanted to opt out of “TSA’s electronic strip search machine.” You watched your baggage proceed through the belt without incident. You then received a pat-down search that you described as “uneventful.” You then state that the agents took you aside and told you that they were going to search your bags. You state that the TSA agents demanded to see your identification and boarding passes and that they were extremely rude about your inability to speak, refused to engage with your attempts to communicate with them, and interrogated you about items they found in your bag. You assert that TSA has no authority to “interrogate anyone about anything,” and you specifically object to the agency’s allegedly unauthorized investigation of your medication and identification documents. You state that the agents extracted your medical information card from your wallet, which explains your need for constant access to your medication, liquids, food, computer, paper, and pen. You further state that, even after reading this card, they denied your access to these items without any legitimate security reason to do so. You state that you told the agents that you objected to their questions and their “entire illegal search.” You allege that, because the agents refused to communicate with you, you clearly asked for access to your own pen and paper so that you could write to them rather than have to “rely on signing and mouthing that they refused to acknowledge as speech.” You state that one of the agents did give you access to your pen and paper, on which you wrote “The law limits the TSA’s jurisdiction to ‘search no more extensive [sic] nor intrusive than necessary to detect the presence of weapons or explosives.’ You are violating the law. What are you looking for?” You explain that the agents read it, scoffed, and then immediately took the paper away and thereafter prevented you from writing again. You state that the agents continued to search through your papers and medications, repeatedly stopping to read the contents thereof. You state that the agents informed you that the possession of two passports was illegal, that possession of medication in both your current and former names was illegal, and that the possession of expired medication was illegal. You state that, throughout the search, one of the agents would swab a random item or area of your backpack and put it through the nearby explosive trace detector machine, but that the swabbing could have been done without the intrusive search of your papers and medications. You mention that the agents repeatedly made attempts to prevent you from reading their badges or writing down their names and identification numbers. You state that the agents called over a police officer to investigate issues with your medication and identification. You further state that, when the police officer arrived, a third TSA agent provided you with a pad of paper with which to communicate with the officer. You allege that the officer questioned you regarding your travel history, reasons for your presence in Boston, and your arrest history. You explain that, in response, you wrote that you did not consent to an interrogation and that you were not under arrest. You indicate that after the officer confirmed that you did not have any outstanding warrants, you were free to go to your gate. At this point, you state that you took down 2

the names and badge numbers of all agents. You allege that the screening process took approximately one hour and that, due to TSA’s actions, the symptoms of your neurological disorder were exacerbated. Finally, you allege that, directly in retaliation for your protest of TSA’s “illegal actions,” the TSA agents intentionally deprived you of your ability to communicate effectively and abused your disability of episodic mutism, despite your “directly informing them of [your] disability and needs.” B. Findings of Fact TSA’s Disability and Multicultural Division (DMD), working with BOS, conducted an inquiry into your screening. The following findings of fact were obtained from your complaint, statements of the TSA Behavior Detection Officers (BDOs), and a review of TSA’s closed circuit television (CCTV) recording of the screening. You have been provided with a copy of the CCTV recording. At or before 10:45 AM on January 21, 2013, two BDOs observed that you were exhibiting behaviors while in line at the security checkpoint at BOS that they believed warranted further observation. These behaviors included, but were not limited to: a failure to respond to questions asked by the Travel Document Checker; and avoidance of eye contact with a BDO attempting to communicate with you at the divestment table. In addition, after you opted out of being screened by the Advanced Imaging Technology (AIT) machine, you were asked to step off to the side to wait for further assistance. Despite this instruction, you repeatedly walked away from the designated waiting area, in what the BDO viewed as an attempt to bypass the AIT machine. As a result of these behaviors, the BDOs referred you for secondary screening and asked you to point out your belongings on the xray belt. After receiving a pat-down, the BDOs told you that they would be conducting a search of your carryon bags. A BDO asked if you had packed your bag yourself, to which you responded by shrugging and mouthing the words “I don’t know.” A BDO asked if there were any sharp or dangerous objects in the bag, and you shrugged and mouthed the words “I don’t know.” A BDO asked if you understood what she was saying to you, and you nodded affirmatively. Then, a BDO asked you a few details about your trip. She asked you questions about your visit to Boston and how you arrived at the airport, to which you mouthed the words “none of your business.” She also asked you if you had a disability, to which you also replied “none of your business.” Based on these interactions, it was apparent that you were able to communicate with the BDOs with the mouthing of words and gestures and that you understood their questions. At approximately 10:49 AM, the BDOs began their screening of your bags. During the search, the BDOs discovered a number of items that required further inspection. For example, in particular, the BDOs discovered a second passport (marked “invalid”), with your picture, but issued under another name, and prescription medication issued under two names. The BDOs also found in your bags a dense unidentifiable object that resembled a small firearm, as well as loose electrical components. The BDOs also found a flight manifest with names of individuals that had been traveling on a previous flight. On the back of the manifest, there was a 3

handwritten message that stated something akin to, “I must speak with the pilot to inform him of my medical condition.” When the BDOs asked you about the items in your bags, you mouthed “why” and indicated that they did not need to know anything. When they asked about the flight manifest, you refused to provide any response. Although you had been advised not to touch anything in your bags until screening had been completed, you attempted to reach for your property on numerous occasions, and otherwise failed to cooperate with the officers, despite your clear understanding of their instructions and questions. During the screening, at approximately 11:00 AM, you reached into your bag, retrieved a pen, and indicated for the first time that you would like to write something. The BDOs allowed you to keep the pen and also provided you with the requested paper. On this paper, you wrote: “The law limits the TSA’s jurisdiction to ‘search no more extensive [sic] nor intrusive than necessary to detect the presence of weapons or explosives.’ You are violating the law. What exactly are you looking for?” At no point did you use the paper to answer any of the questions that the BDOs asked you regarding the reason for your trip or the contents of your carry-on luggage. After the BDOs read what you had written, they placed the paper back in your carry-on bag and continued the screening process. You then attempted to grab some papers from the BDO. Due to your repeated failure to cooperate with the screening process, as well as the items found in your bag (to include the second passport issued under another name), the BDOs determined that law enforcement involvement was necessary. When law enforcement arrived, at approximately 11:12 AM, one of the BDOs provided you with a note pad. The law enforcement officer (a Massachusetts State Police Trooper) engaged in a conversation with you, reviewed some of your personal documents, and asked you a series of questions. You communicated with the law enforcement officer with head movements and hand gestures and informed him in writing that you did not consent to an interrogation and that you were not under arrest. At approximately 11:18 AM, the BDOs completed the screening of your items. The law enforcement officer continued to look through your documents and completed his investigation after conducting a query with the National Crime Information Center. At approximately 11:34 AM, you exited the screening area with your possessions and subsequently boarded your flight. C. Conclusions of Law Section 504 of the Rehab Act provides, in relevant part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance

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or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794 (a).4 To establish a case of discrimination based on an individual’s disability under Section 504, an individual must demonstrate that: 1) he or she is disabled within the meaning of the Rehabilitation Act; 2) he or she is “otherwise qualified”; to participate in the program; 3) he or she was excluded from, denied the benefit of, or subject to discrimination under a program or activity; and (4) the program or activity is carried out by a federal executive agency or with federal funds.5 We address each of these factors as they pertain to your complaint below. The conduct at issue must involve a “program or activity” of a federal agency. Pursuant to Section 504, a “program or activity” means all of the operations of a federal agency. 6 Searching persons and their property prior to allowing them to board aircraft is a program or activity of TSA, and thus constitutes a federal program or activity under Section 504.7 To be covered under Section 504, you must be a person with a disability. Under the ADA, “disability” means, with respect to an individual: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment.8 You state in your complaint that you are a person with a disability due to a neurological disorder affecting your motor system. In the absence of additional facts and solely for the purpose of determining whether your claim required additional investigation to determine whether TSA violated Section 504, TSA assumes, without deciding or concluding, that you are an individual with a disability and are otherwise qualified to participate in TSA’s passenger screening for purpose of boarding a commercial aircraft. Thus, the remaining question is whether TSA’s passenger screening procedures, as applied to you at BOS on January 21, 2013, discriminated against you as a person on the basis of your disability. For the following reasons, we conclude that it did not. First, the screening of your person and property by TSA was conducted not based on your disability, but as a result of your continued failure to cooperate with the screening process. In particular, the BDOs asked you a series of questions regarding your bags, your trip to Boston, and the items found in your bags. You demonstrated an understanding of these questions and communicated your responses both non-verbally and by the mouthing of words. However, your responses quickly 4

DHS has promulgated regulations at 6 C.F.R. Part 15 to effectuate Section 504 as amended. The regulations provide that “No qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from the participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30. The regulations are effective “for all components of the Department, including all Department components that are transferred to the Department, except to the extent that a Department component already has existing section 504 regulations.” 6 C.F.R. § 15.1. TSA is a component of DHS. As such, the DHS regulations effectuating Section 504 apply to TSA. 5

See The American Council of the Blind, et al. v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). “[F]ederally conducted program is ‘anything a federal agency does.’” Yeskey v. Pennsylvania, 118 F.3d 168, 171 (3d Cir.1997) (quoting Department of Justice regulation 28 C.F.R. Part 39, Editorial Note, at 676). 7 Paulson, 525 F.3d at 1266. 8 42 U.S.C. § 12102(1). 6

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indicated your refusal to cooperate with the screening process. In your complaint, you allege that the BDOs “refused to communicate with [you],” though it is clear that they did continuously communicate with you but were thwarted by your refusal to answer their questions or otherwise cooperate. Considering the facts in this case, your conduct, and the screeners’ responses, we have determined that the screening conducted by the BDOs was not related to your disability, but rather was prudent security screening under difficult, and potentially serious, circumstances.9 Second, when considering whether a Section 504 violation occurred, the proper focus is “on whether the government action denied meaningful access to the government benefit at issue in the case.”10 In this case, you received “full and complete access to the secure side of the security checkpoints” and “full and complete access to TSA’s security screening program.”11 After the completion of screening, you were permitted to proceed into the sterile area, and you boarded your flight. As such, TSA’s actions did not deny you meaningful access to a government benefit. At no point were you excluded from the participation in, denied the benefits of, or subjected to discrimination under TSA’s screening program. Third, during the screening process, you refused to answer questions pertaining to your disability when directly asked of its existence. If a reasonable accommodation had been warranted due to your disability, the government’s ability to offer a reasonable accommodation is limited by its knowledge of the disability. 12 You were able to communicate with the screeners, but still refused to provide information on your disability necessary for TSA to determine if a reasonable accommodation could be made. To the extent that your request for pen and paper constituted a request for a reasonable accommodation, both parties then had a duty to engage in good faith in an interactive process to consider the appropriate accommodation.13 The BDOs granted your request for paper. However, you did not use the writing materials to answer any of the BDOs’ questions regarding the items found in your bag. Instead, you used them to object to the screening and tell the BDOs that they were violating the law, continuing to not cooperate with the screening process. Although you requested access to the paper again after it had been placed back in your carry-on bag, which was in the process of being screened, your lack of cooperation with the screening process and BDO questions, both with and without paper, indicates that the continued provision of paper would not have yielded different results. You were able to effectively communicate with the BDOs without 9

See Ruskai v. Pistole, 2014 WL 7272770, at *17 (1st Cir. Dec. 23, 2014) (finding that when the safety of the public at large is implicated, entities must be permitted some latitude in their judgments that individualized assessments of qualifications are necessary); see Fink v. N.Y.C. Dep’t of Personnel, 53 F.3d 565, 567 (2d Cir. 1995) (finding that Section 504 does not require a lowering of standards to accommodate a disability). 10 Id. at *15 (citing Alexander v. Choate, 469 U.S. 287, 301-02 (1985)). 11 Id. At *16. 12 See Beck v. Univ. of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (finding that, in the employment context, an employee has an initial duty to inform the employer of a disability before liability may be triggered for failure to provide accommodations). 13 Id. (“A party that obstructs or delays the interactive process is not acting in good faith.”); see also Kleiber v. Honda of Am. Mfg. Co. , 420 F.Supp.2d 809, 828 (S.D. Ohio 2006) (“An employer cannot be found to have violated the ADA when responsibility for the breakdown in the informal interactive process is traceable to the employee and not the employer.”), aff'd by 485 F.3d 862 (6th Cir. 2007).

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writing materials, through the use of the mouthing of words and gestures. When a law enforcement officer arrived, you used hand and head gestures to communicate with him, and were provided with writing materials. Again, however, you informed the law enforcement officer that you would not consent to an interrogation. Although you allege that you were denied access to communication aids, you were only briefly without paper, and you had the ability to utilize other modes of communication, as you had done during your previous interactions with the BDOs. Neither your secondary screening, nor the BDOs’ decision not to engage in written communication while awaiting law enforcement assistance, was in any way related to your disability; these were actions taken in furtherance of TSA’s mission. TSA was created to strengthen the security of the nation’s transportation systems and ensure the freedom of movement for people and commerce. Given this core mission, TSA must take steps to investigate and resolve any potential security risks that it detects at the checkpoint. This investigation is exactly what occurred during your screening process. After a resolution of the issue, which took additional time, due to your unwillingness to provide responses to security questions, you boarded your flight. The available evidence does not support your assertions that you were excluded from the participation in, denied the benefits of, or subjected to discrimination under TSA’s screening program. D. Remedies Absent a finding of discrimination based on disability, there is no remedy available to you under Section 504. E. Right to Appeal You may appeal these findings of facts, conclusions of law or remedies. Such an appeal must be filed with the Office for Civil Rights and Civil Liberties, at the address below within 60 days after receipt of this letter. A timely appeal shall be reviewed by the Office for Civil Rights and Civil Liberties, who will issue the final agency decision in this matter. 6 C.F.R. §15.70(h). The Notice of Appeal should be sent by mail to the Office for Civil Rights and Civil Liberties at the following address:

U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties 245 Murray Lane, SW, Building 410 Mail Stop 0190 Washington, DC 20528-0190

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This letter brings our investigation to a conclusion. If you do not appeal the Section 504 findings, legal conclusions or remedy set out herein to the Office within 60 days, we will close your complaint. Sincerely,

Veronica Venture Deputy Officer Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security

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