violation of rehab act and includes harassments
Clifton W. Crawford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200611351
Agency No. 4F-926-0201-04
DECISION
On November 25, 2005, complainant filed an appeal from the agency’s
October 24, 2005, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission REVERSES the final agency decision (FAD).
At the time of events giving rise to this complaint, complainant worked
as a full time regular Laborer Custodian, PS-03, at the Laguna Niguel
Post Office, located in Laguna Niguel, California. On May 11, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of disability (regarded as disabled due to weight)
and in reprisal for prior protected EEO activity [arising under the
Rehabilitation Act] when he was sent for a Fitness For Duty (FFD)
examination on April 7, 2004, pursuant to a memorandum signed by the
Postmaster, and dated March 22, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant’s request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The FAD concluded that complainant failed to
prove that he was subjected to discrimination as alleged.
The FAD first found that complainant is not disabled pursuant to the
Rehabilitation Act. The FAD then applied a disparate treatment analysis,
and found that complainant failed to show that similarly-situated
co-workers were treated more favorably under similar circumstances.
The FAD also found that complainant did not establish that the Postmaster
requested the FFD examination because of complainant’s alleged disability.
Specifically, the Postmaster stated that on a number of occasions
she had observed that complainant appeared to be suffering from some
“sort of illness.” The Postmaster stated that at times complainant
looked like he was going to pass out on the work floor. She further
stated that she had a prior experience with another employee who had a
leg injury, and after she sent that employee for an FFD examination,
she learned he had diabetes. The Postmaster stated that based on
this past experience with the other employee, she ordered the FFD
for complainant’s protection and for the protection of the agency.
The FAD then found no evidence that management’s explanation was a
pretext for disability-based discrimination. As to the retaliation
claim, the FAD found that complainant did not show that the manager was
aware of his prior EEO activity at the time she issued the memorandum
requesting an FFD examination. The FAD concluded that the agency
had articulated legitimate, nondiscriminatory reasons for its action,
and that complainant did not show that such reasons were more likely a
pretext for retaliation.
On appeal, complainant contends that the reasons given by the Postmaster
for requesting the FFD examination are untrue. For instance, he states
that it is not true that he could not stand on a ladder; it is not true
that his knee and leg problems are due to excessive weight (they are
due to having been wounded in Vietnam in 1968 and he still has shrapnel
in his left leg); it is not true that he is 60% disabled; and it is not
true that the manager was doing everything in her power to accommodate
him (he needed no assistance or accommodation, and asked for none).
Complainant states that he was effectively performing all of his duties
(including climbing ladders) prior to March 22, 2004. He also denies
that he is a safety hazard and notes that he has been accident-free for
over 7 years of service. Complainant also denies that he has claimed
he is disabled. He also notes that he does not have diabetes, although
his Postmaster asked him whether he did. Finally, complainant notes
that he has been working at Laguna Niguel for about 5 1/2 years without
a complaint or problem with his work. In response, the agency requests
that we affirm the FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
Initially, we note that the FAD applied only a disparate treatment
analysis in the instant case, which was appropriate as to complainant’s
claim that the FFD examination was ordered in reprisal for his prior EEO
activity. The FAD failed however, to address whether the instant referral
for an FFD examination was permissible under the Rehabilitation Act.
The FAD also did not recognize that the Rehabilitation Act’s restrictions
on inquiries and examinations apply to all employees, not just individuals
with disabilities:
This statutory language makes clear that the ADA’s restrictions on
inquiries and examinations apply to all employees, not just those with
disabilities. Unlike other provisions of the ADA which are limited to
qualified individuals with disabilities, the use of the term “employee”
in this provision reflects Congress’s intent to cover a broader class of
individuals and to prevent employers from asking questions and conducting
medical examinations that serve no legitimate purpose. Requiring an
individual to show that s/he is a person with a disability in order
to challenge a disability-related inquiry or medical examination would
defeat this purpose. Any employee, therefore, has a right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity.
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA)
(July 27, 2000) (web version) (Guidance), at footnote 15. Accordingly,
complainant did not need to establish that he is disabled within the
meaning of the Rehabilitation Act in order to prevail in his instant
claim.
Next, we note that an employer may require a medical examination of
an employee only if the examination is job-related and consistent with
business necessity. See Guidance at 5. This requirement is met when the
employer has a reasonable belief, based on objective evidence, that (1)
an employee’s ability to perform the essential job functions is impaired
by a medical condition; or (2) that an employee poses a direct threat
due to a medical condition. See Guidance at 14. Objective evidence is
reliable information, either directly observed or provided by a credible
third party, that an employee may have or has a medical condition that
will interfere with his/her ability to perform essential job functions
or will result in direct threat. Id. Where the employer forms such a
belief, its disability-related inquiries and medical examinations are
job-related and consistent with business necessity. Id.
On March 22, 2004, the Postmaster requested an FFD examination, stating
the following, in pertinent part:
[Complainant] has a history of chronic leg and knee problems are [sic]
maybe due to the excessive weight he carries. I am concerned about his
weight because the duties he performs is all walking, also his duties
include dusting cases of which he cannot stand on a ladder to reach the
top of the cases. He is unable to perform his assigned duties due to
his weight and other health related issues. He is also a 60% disabled
Veteran he sustained an injury in 1968 why [sic] in the military to his
leg. . . I feel that it is not safe for him to do his job as a Custodian.
Counselor’s Report, at 1.
In her Affidavit, the Postmaster testified that she often noticed
complainant sweating profusely and looking like he was going to pass out
on the work floor. She further noted that when asked if he was alright,
complainant always stated he was fine. She also stated that prior to
March 22, 2004, complainant had begun to call in sick more than usual, and
she submitted leave records to support this claim. She also stated that
during a conversation with complainant, he informed her he was diabetic.
Complainant denied making such statement, and we note that the Postmaster
did not identify the date when this conversation supposedly occurred.
The record contains no evidence that complainant has diabetes or ever
stated to the Postmaster that he did.
Additionally, the Postmaster stated that in the past, she observed that
another employee, who had a leg injury similar to complainant’s, had his
pants leg rolled up and the leg was purple in color. She explained that
she requested that the employee undergo an FFD examination and as result,
they learned that the employee was diabetic and that he needed to have
his leg elevated all the time. She stated that the employee ultimately
retired on a medical disability. She specifically stated that what she
learned from this incident affected the way she handled complainant and
his medical condition.
In his Affidavit, complainant’s supervisor stated that on March 22,
2004, complainant was limping and could not perform all the essential
job functions of his position such as climbing ladders, or going up to
clean the Look-Out Gallery. The supervisor also stated that complainant
could not bend or stoop down and sweated heavily. The supervisor stated
that when this occurred he called another custodian from another station
to come and complete complainant’s duties. The supervisor stated that
complainant never asked to switch or transfer, nor did he ask to switch or
transfer some of his job functions, and he always got upset when another
custodian was called over. The supervisor submitted no documentation
in support of his claim that on March 22, 2004 (or any date) complainant
was unable to perform any of his job functions.
In order for the referral for FFD examination to be lawful under the
Rehabilitation Act, management is required to establish that on or
around March 22, 2004, there was “objective evidence” that complainant’s
ability to perform his essential job functions was impaired by a medical
condition or that he posed a direct threat due to a medical condition.
After a careful review of the record, we find that management has not met
this burden. For instance, the Postmaster has made general statements
about her observations concerning complainant’s appearance and heavy
breathing, yet she did not submit any document to substantiate that
she had witnessed complainant in this condition. For instance, the
Postmaster could have submitted logs or personal notes describing her
observations of complainant’s appearance/condition at different times,
but she failed to do so. The record is also devoid of any evidence that,
as the Postmaster stated in her memorandum, “it [was] not safe for him
to do his job as a Custodian.”
Additionally, although complainant’s supervisor contends that on March
22, 2004 complainant was unable to climb ladders, complainant denies
that this was true, and in fact states that he did stand on a ladder to
dust cases and perform other tasks requiring a ladder. The supervisor
did not provide any documentation that on that date complainant was not
able to perform this function of his job. There is also no evidence
that the supervisor called another custodian from another station
to come and complete complainant’s duties, as the supervisor claims.
Nor is there evidence that the supervisor has ever been required to
call for assistance because of complainant’s inability to do his work.
The supervisor did not provide any performance appraisals, disciplinary
records or other documentation to support his contention that complainant
was failing to perform any of his essential job functions. There is, in
fact, nothing in this record (other than management’s bare assertions)
to refute complainant’s statements that on March 22, 2004, he had been
working at Laguna Niguel for about 5 1/2 years without a complaint
or problem with his work, and/or that he had been accident free for
approximately 7 years of service.
Further, the Postmaster specifically admitted that she applied her past
experience with another employee to complainant’s situation. She stated
that because that prior employee turned out to have diabetes, she ordered
the FFD for complainant’s protection and the protection of the agency.
This is persuasive evidence that the decision to order the FFD was not
made based on objective evidence concerning complainant, and was instead
made based on the Postmaster’s assumptions about his condition because
of her past experience. Finally, we recognize that as a result of the
examination, some restrictions were placed on complainant. However,
the FAD specifically states that the restrictions (no climbing ladders,
no repetitive bending or stooping) were due to the fact that complainant
twisted his knee on March 27, 2004 (five days after the FFD examination
was ordered, but before the examination actually occurred on April 7,
2004). Although the record indicates that the twisted knee occurred
because complainant did not select the proper size ladder for his weight,
there is still no indication that complainant was unable to perform the
essential functions of his job. This simply indicates that complainant
ought to have used a different size ladder to complete the task at hand.
In sum, we find that the evidence contained in this record simply does
not support that the FFD examination in question was job-related and
consistent with business necessity.
After a careful review of the record, including all arguments submitted on
appeal, we find that requiring complainant to undergo the FFD examination
constituted a violation of the Rehabilitation Act.2 We also find that
complainant raised a cognizable claim for compensatory damages when he
requested “monetary consideration and relief.” We REVERSE the FAD and
direct the agency to comply with the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency shall do the following:
(1) Provide training to the relevant management officials, regarding
their responsibilities with respect to eliminating discrimination in the
federal workplace. The training must emphasize the agency’s obligations
under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
(2) The issue of compensatory damages is REMANDED to the agency.
The agency shall conduct a supplemental investigation and then issue
a final agency decision addressing the issue of compensatory damages.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
(3) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency’s employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its the Laguna Niguel Post Office, Laguna
Niguel, California, copies of the attached notice. Copies of the notice,
after being signed by the agency’s duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission’s Decision,” within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate 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
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
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 Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, 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.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above (“Right
to File A Civil Action”).
FOR THE COMMISSION:
December
19,
2007
______________________________
__________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Given that the Commission has found the referral for FFD examination
to be unlawful under the Rehabilitation Act, we will not address the
claim that this action was also retaliatory, as complainant would not
be entitled to any additional remedies.
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0120061135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
