November 02, 2009
Emily Ryan
(202) 639-6421

TSA Union Steps In After Agency Discriminates Against Employee with Medical Needs

(WASHINGTON)—A MilwauKee Transportation Security Officer who was removed six years ago is likely to get his job back after a successful appeal by the American Federation of Government Employees. In a Sept. 28 decision, an Equal Employment Opportunity Commission administrative judge ordered the Transportation Security Administration to reinstate the TSO if he passes a medical exam for diabetes within 65 days. The TSO has brought his diabetes under control and is confident he will pass the blood-sugar test.

The TSO was removed in 2003 and hired a private attorney to represent him in a complaint alleging retaliation for exposing management misconduct. After a hearing, the administrative judge told the parties that he would find discrimination and would encourage a settlement. After TSA threatened to drag the case on, the TSO agreed to the settlement agreement, which required that TSA restore the TSO if he passed a physical assessment that included a diabetes test for the Type 2 diabetes he had developed while unemployed. He flunked the blood-sugar test and was terminated.

In October 2005 AFGE stepped in, arguing that the settlement did not specify when he had to pass the test. Because the TSO’s health was better, he should have been restored. The judge agreed with AFGE and found that TSA treated the TSO differently than other diabetic TSOs. The judge said the agency most definitely would have resolved the matter differently had the TSO been employed, meaning that if the TSO had developed diabetes while still employed, he would have been treated differently. The agency would have taken no action if it had known about his diabetes. If he requested accommodation, the agency would have tried to accommodate him.

“However, there is no evidence that Complainant could not perform the essential functions of the positions, so in all likelihood, he would have enjoyed employment on the same terms and conditions as all other screeners,” the judge wrote in his decision.

The judge also agreed with AFGE when he found that other employees who fail a medical exam are given 65 days to retest, but the TSO was not given that chance. He additionally dismissed financial trouble as grounds for removal after finding that the TSO’s financial problem was a direct result of his removal.

AFGE attorneys Gony Goldberg and Joe Henderson represented the TSO.

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