U.S. Department o~· Homeland Security

Commandant United States Coast Guard

United States Coast Guard

2703 Martin Luther King Jr. Avenue, SE Stop 7000 Washington, DC 20593-7000 Staff Symbol : CG-OOH Phone: (202) 372-4500 Fax: (202) 3 72-4968

5354

AUG 25 2015 Sai, Complainant v.

Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, Agency

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Complaint No. TSA-13-0397

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Dear Sai, The U.S. Department of Homeland Security (Department), Office for Civil Rights and Civil Liberties (CRCL) received your appeal dated May 3, 2015 of its decision dated March 4, 2015 in the referenced complaint. Pursuant to 6 C.F.R. § 15.70(i), this is the Department's, via its designee's 1, final action on your appeal. FORMAL DETERMINATION Accepted for adjudication by the U.S. Transportation Security Administration (TSA): You alleged that you were subjected to discrimination due to your disability (episodic mutism) when you were deprived the opportunity to effectively communicate, denied access to medical and accommodating needs, and subjected to several instances of harassing behaviors. Based upon a thorough review of the record, including your May 3, 2015 appeal (Appeal), we find that you failed to produce any additional evidence to show that CRCL's March 4, 2015 decision was based on mistakes in findings of fact, conclusions of law, remedies, or that CRCL otherwise erred in its decision, thereby, failing to prove that you were subjected to disability discrimination in violation of Title VI or the Rehabilitation Act of 1973, as amended. For these reasons, we AFFIRM CRCL's March 4, 2015, decision.

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The U.S. Department of Homeland Security, Office for Civil Rights and Civil Liberties delegated authority to the U. S. Coast Guard (USCG), a component, to issue the final action in the case of# TSA-13-0397.

Complaint # TSA-13-0397

PROCEDURAL HISTORY 1. On January 26, 2013, you initiated a complaint with TSA claiming that TSA agents

violated your civil rights on January 21, 2013. Later, you submitted a detailed account of the events (Complaint titled Sworn Affidavit of Events, pgs 1-19, dd. 1129113). 2. On April 5, 2013, your complaint was forwarded to TSA, Disability and Multicultural Division (DMD) for review. 3. TSA accepted for investigation your complaint of discrimination based on disability. 4. On January 29, 2015, TSA notified you that the investigation was completed. 5. Your complaint was forwarded to CRCL for review and decision; and on March 4, 2015, CRCL issued a decision finding that you failed to prove that you were subjected to discrimination based on your disability. 6. On May 3, 2015, you filed a timely appeal ofCRCL's decision.

CLAIM AT ISSUE Whether, on January 21, 2013, you were denied reasonable accommodation by TSA that would allow you meaningful participation in the domestic security screening program on the basis of your disability.

FINDINGS OF FACT 2 I. On January 21, 2013, at 10:45 am, you approached the personnel assigned as Travel Document Checker (TDC) at the security check point at Logan Airport in Boston, Massachusetts. During the document screening, the TDC asked you routine questions and you avoided eye contact, failed to reply, and failed to cooperate. Two Behavior Detection Officers (BDOs) observed your behavior and intervened. (CRCL Decision at 3)

2. You opted out of screening by Advanced Imaging Technology (AIT), which required a pat-down. You were asked to wait for further assistance. (CRCL Decision at 3) 3. Despite the BDOs' request, you failed to follow their instructions and proceeded to walk away from the designated area. Due to your behavior, you were subjected to a secondary screening. (CRCL Decision at 3)

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This section includes only relevant undisputed facts which are consistent with the evidence of record as well as the factual summaries set forth by Complainant and TSA. In developing the contents of this section, all of the evidence and arguments presented by Complainant were closely reviewed and considered whether or not specifically mentioned herein. (See Sai's Complaint 0 1/29/13 , and Administrative Appeal, 05/03 /2015; and CRCL Decision, 03/4/2015.)

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Complaint # TSA-13-0397 4. During the secondary screening, you appeared to understand the pointed questions that were directed to you in that you appeared to be willfully disrespectful and or uncooperative. (CRCL Decision at 3) (Video at 8:29; 13:49; 13:54; 14:55; 16:36; 17:49; 19:23) 5. At approximately 10:49 am, BDOs began screening your bags. During the search of your carry-on bag, the BDOs discovered several items of concern, and therefore proceeded to question you about the items. Further, although you had been advised not to touch anything in your bags until screening had been completed, you attempted to reach for your property numerous times, and at one juncture, you retrieved a pen and requested writing paper. You were permitted to keep the pen and were provided paper. Although you proceeded to write your objections to the screening procedure, you continued not to cooperate, and therefore, law enforcement officers were summoned. (CRCL Decision at 3-4) (Video at 9:00; 11:25: 13:49; 14:55; 14:56; 15:14; 16:36) 6. You communicated with the law enforcement officers through gestures or writing. After the law enforcement review, you were allowed to exit the screening area with your possessions and subsequently boarded your flight. (Appeal at 14; CRCL Decision at 4)

JURISDICTION In accordance with 6 C.F .R. § 15. 70(i), the Department has jurisdiction and delegation authority to appoint designee, U.S. Coast Guard, to issue the final decision in response to Complainant's May 3, 2015 appeal. The Department utilizes a discrimination complaint process patterned, to the extent practicable, after the process defined by the Equal Employment Opportunity Commission (EEOC) Federal Sector Regulations at 29 C.F.R. Part 1614. Delegation Number 19003, dated October 26, 2012, authorizes CRCL to render final decisions in EEO complaints on behalf of the Secretary, pursuant to 29 C.F.R. § 1614.110, or administratively, when that regulation is not applicable. Department Directive Number 065-1, Non-Discrimination for Individuals with Disabilities in DHS-Conducted Programs (Non-Employment), charges CRCL with the responsibility to ensure nondiscrimination for individuals with disabilities served by the Department's programs and activities under Section 504, consistent with the provisions of Delegation Number 19003. The Department and/or its designee, when a decision has been appealed, will affirm findings in CRCL's decision if supported by substantial evidence, 3 a procedural aspect of the Department's complaint process that mirrors, to a large extent, the process put forth by 29 C.F .R. § 1614.405(a). 3

Substantial evidence is the most deferential standard of appellate review. It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. ofNew York, Inc. v. NLRB, 305 U.S. 197, 229 (1938). The substantial evidence standard does not allow a court "to reverse the choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." NLRB v. Walton Mfg. Co., 369 U.S. 404, 405 (1962) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). A finding of discriminatory intent is a factual finding subject to the substantial evidence review standard. Pullman Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

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Complaint # TSA-13-0397 STAND ARD OF REVIEW

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 706; 794 et seq. prohibits discrimination based on disability in a government program. Generally, the adjudication of a complaint of discrimination alleging disparate treatment under the Rehabilitation Act follows a three-step evidentiary analysis. First, the burden is on the complainant to establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Board of Trustees ofKeene State College v. Sweeney, 439 U.S. 24 (1978); Furnco Construction Corporation v. Waters, 438 U.S. 567 (1978). This means that the complainant must present a body of evidence such that, were it not rebutted, the trier of fact could conclude that unlawful discrimination occurred. See Teamsters v. US., 431 U.S. 324 (1977). Second, if the complainant meets the burden of presenting a prima facie case, then management has a burden of production to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Third, in order to prevail, the complainant must show by a preponderance of the evidence that management's stated reason is a pretext for discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Burdine, 450 U.S. at 256; McDonnell Douglas, supra. Section 504 of the Rehabilitation of 1973 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 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 In cases involving an alleged failure to accommodate a physical or mental disability or other alleged disability discrimination in a government program under the Rehabilitation Act of 1973, prima facie case requirements differ somewhat from the traditional McDonnell Douglas approach. In Section 504 claims, a successful prima facie case generally requires evidence showing that: 1) the complainant is disabled within the meaning of the Rehabilitation Act of 1973; 2) the complainant is "otherwise qualified" to participate in the program; 3) the complainant 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. See The American Council of the Blind, et al. v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). To be covered under Section 504, an individual with a disability under the Rehabilitation Act of 1973, has: (i) a physical or mental impairment that substantially limits one or more major life

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The Department 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 the Department; as such, the Department regulations effectuating Section 504 apply to ISA.

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Complaint # TSA-13-0397 activities of such individual; (ii) a record of such impairment; or is (iii) regarded as having such impairment. 42 U.S.C. § 12102(1). Pursuant to Section 504, a program or activity means all of the operations of a federal agency. See Yeskey v. Pennsylvania, 118 F.3d 168, 171 (3d Cir. 1997) (A "[F]ederally conducted program is 'anything a federal agency does ... "' quoting Department of Justice regulation 28 C.F.R. Part 39, Editorial Note, at 676). 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. See Paulson, 525 F.3d at 1266.

CRCL FINDING Neither the Department nor TSA contested that you are an individual with a disability in accordance with the standards set by the Rehabilitation Act of 1973 and 29 U.S.C. § 794. The Department found that you were under the protection of the Rehabilitation Act while being searched by TSA agents, in accordance with 6 C.F.R. § 15.1 and 6 C.F.R. § 15.30(a), because you were taking part in a Departmental program or activity. However, CRCL found that you were not illegally searched, denied a reasonable accommodation, nor were you excluded from participation in, denied the benefits of, or subjected to discrimination under the TSA's screening program, in violation of Section 504. As such, failing to meet the burden of the prima facie requirement.

CONTENTIONS ON APPEAL On appeal, you contended that TSA erred in accepting and processing your Section 504 claim without including in its decision an analysis regarding your allegations of constitutional violations, such as your allegations that you were illegally searched; that your First Amendment Free Speech right was violated; and that the police illegally detained you on January 21, 2013. You also contended that, as a result of mistakes of fact and law, CRCL erred in its March 4, 2015, decision when it found that TSA did not subject you to disability discrimination, in violation of Section 504 of the Rehabilitation Act of 1973, when TSA officials denied your requests for reasonable accommodation while conducting the screening process on January 21 , 2013.

ANALYSIS A. Accepted Claim The Complaint was properly accepted as a claim of disability discrimination under Section 504 of the Rehabilitation Act of 1973, as Amended5 5

Although Complainant's claim was accepted as alleging disability discrimination in the form of failure to accommodate Complainant's disability during the January 21, 2013, TSA screening process, the analysis of the claim was expanded in CRCL's March 4, 2015, decision to include an analysis of whether Complainant was subjected to an illegal search by TSA agents based on his disability. The issue of an alleged illegal search based on disability is analyzed in this appellate decision as well. (See CRCL Decision; see also Section 504 Allegation analysis, herein.)

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Complaint # TSA-13-0397

Title VI, 42 U.S.C. § 2000d et seq., enacted a prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on grounds ofrace, color, or national origin. The parallel law prohibiting exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs based on disability is Section 504 of the Rehabilitation Act of 1973, as amended. Based on your sworn affidavit, dated January 29, 2013, we find that TSA properly accepted your claims based on disability under Title VI of the Rehabilitation Act of 1973, as amended. Throughout your 19 page statement, you based all alleged actions on your disability; moreover, you included physician statements confirming your disability.

B. Section 504 Allegation You are an individual with a disability under the Rehabilitation Act of 1973 The Department does not contest your assertion that your physical impairment substantially limits one or more major life activities and, thus, constitutes a disability under the Rehabilitation Act of 1973.

You were otherwise qualified to participate in the Department's program Evidence in the record establishes that you were allowed to participate in TSA's screening process with or without a reasonable accommodation. The Department does not contest that the TSA screening process constitutes a government program; and your participation in that process was in accordance with Section 504 of the Rehabilitation Act of 1973.

You were not denied a reasonable accommodation, nor were you excluded from participation in TSA Screening Process. The record reflects that you were screened on January 21, 2013 by TSA agents. Additionally, further screening was conducted due to your conduct and behavior, and not because of your disability. Specifically, TSA agents showed caused based on your refusal to answer pointed questions, or, offering responses to security questions with "I don't know," and "None of your business." You presented no new evidence to establish that TSA agents engaged you in the screening process motivated by discrimination based on your disability. In addition, if an individual's disability or need for reasonable accommodation is not obvious, and he refuses to provide documentation regarding his disability, then he is not entitled to a reasonable accommodation. See Templeton v. Neodata Servs .. Inc., No. 98-1106, 1998 WL 852516 (10th Cir. 1998); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134,5 (7th Cir. 1996); see also McAlpin v. National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 (N.D. Tex. 1996). On the other hand, failure by the Agency to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 (7th Cir. 1998). However, when a complainant has requested a reasonable accommodation and the Agency has initiated an interactive process, the complainant must engage in good faith in the interactive process. A complainant who obstructs or delays the process is not acting in good faith. An Agency cannot be found to have violated the Rehabilitation Act when responsibility for the breakdown in the informal interactive process is

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Complaint # TSA-13-0397 traceable to the complainant and not the Agency. See Beck, supra; see also Kleiber v. Honda of Am. Mfg. Co., 420 F.Supp.2d 809, 828 (S.D. Ohio 2006), affd by 485 F.3d 862 (6th Cir. 2007). In this case, at the beginning of the screening process, TSA agents attempted to engage you in the interactive process, asking you about your conduct, your condition, and what you might need. They provided a pen and paper for you to respond in writing. Rather than engage in good faith efforts to obtain an accommodation, you used the pen and paper to proffer objections to the screening process. 6 Also, when determining whether a complainant has been subjected to a violation of Section 504 of the Rehabilitation Act of 1973, the proper focus is "on whether the government action denied meaningful access to the government benefit at issue in the case." See Alexander v. Choate, 469 U.S. 287,301,302 (1985); see also Ruskai v. Pistole, 2014 WL 7272770, at 15 (1st Cir. Dec. 23 , 2014). The evidence establishes that you were not denied meaningful access to the screening process. In fact, you were given the opportunity to engage in interactive dialogue throughout the TSA screening process, but willfully, chose not to fully cooperate. Based on your actions and behavior, the TSA agents determined that you fully understood their communications in that your verbal communication was coherent when you chose to speak; your hand and body signals and written messages were understood. Through these communications, you failed to request any special needs; rather, you continued to object to the screening process. Thus, we find that the evidence establishes that you had meaningful access to the screening process. Finally, an individual with a disability is not necessarily entitled to a reasonable accommodation of choice. An Agency may choose among reasonable accommodations as long as the chosen accommodation is effective. See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997); see also Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996); see also Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). The record does reveal that for about ten minutes during the screening process, you were without pen and paper. Conversely, this diminutive amount of time did not prevent you from fully communicating and cooperating when you did gain access to paper and pen. Moreover, the evidence establishes that during the duration without pen and paper, you were capable of using other effective modes of communications. The record shows that during the entire screen process, TSA agents understood and acknowledged your verbal and nonverbal communications. For these reasons and based on the full evidentiary record, we find that you failed to present evidence to prove that you were excluded from the participation in, or denied the benefits of TSA's screening program; nor were you subjected to discrimination due to your disability.

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You asserted in your complaint that ISA agents were informed about your condition when they looked in your wallet and observed a wallet sized card which had a statement regarding your disability. You did not present evidence to corroborate your statement. Nonetheless, even ifTSA agents observed the wallet size physician's note as you alleged, it was at that point when you should have engaged in the interactive process. Rather, you refused to engage in the interactive process. (See Complaint, Complainant's Appeal, and CRCL Decision.)

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Complaint # TSA-13-0397 The TSA Screening Process is a Program or Activity Carried out by a Federal Executive Agency or with Federal Funds

The Department does not contest that the TSA screening process is a federally funded activity and that you were covered by Section 504 of the Rehabilitation Act of 1973 during the TSA screening process on January 21, 2013. CRCL Did Not Rely On a Mistake of Law in its March 4, 2015, Decision

In your appeal, you alleged that CRCL relied on mistakes oflaw in its March 4, 2015, decision. We find, based on the full evidentiary record, and on the arguments and evidence presented by you on appeal, that you failed to establish that CRCL's March 4, 2015, decision was due to a mistake oflaw. CONCLUSION

Based upon the full evidentiary record, the Department concludes that you failed to prove that CRCL erred in their findings of fact, their conclusions oflaw, or the remedies available, in its March 4, 2015 decision, as claimed in your appeal. Thus, we AFFIRM CRCL's March 4, 2015, decision finding no discrimination. Since you are not the prevailing party, there are no entitlements to payment of attorney's fees, costs, compensatory damages, or other remedies available under Section 504. No corrective action is required by TSA, CRCL, or its designee (U.S. Coast Guard).

Sincerely,

Terri A. Dickerson Director, Civil Rights

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Complaint # TSA-13-0397 NOTICE OF RIGHT TO APPEAL

This decision is the final decision on appeal with regard to this matter. Your appeal rights are stated below. Right to Request Reconsideration As stated in this decision, the Department's complaint process is patterned, to the extent practicable, after the procedures provided under 29 C.F.R. § 1614. As such, the Department permits complainants to file requests for reconsideration of decisions on appeal, a procedural step that mirrors, to a large extent, the process put forth by 29 C.F.R. § 1614.405(c). Thus, the Department, in its discretion, may grant reconsideration if the complainant demonstrates that: (1) The appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) The 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 within 30 calendar days of receipt of this decision on appeal. All request and arguments must be submitted by mail to the following address: U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties 245 Murray Lane, SW Mail Stop 0190 Washington, DC 20528-0190 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 Department will consider requests for reconsideration filed after the deadline only very limited circumstances. Right to File a Civil Action You have the right to file a civil action in an appropriate United States District Court. You may file a civil action within 90 days ofreceipt of this final decision. You must name Jeh Charles Johnson, Secretary, Department of Homeland Security, as the defendant. Failure to provide his name or official title may result in dismissal of your case. If you decide to file a civil action under the Rehabilitation Act of 1973, as amended, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend the time in which to file a civil action. Both the request and the civil action must be filed within ninety (90) calendar days of the date you receive this final decision.

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