unlawful medical exam referal
violation of the Rehabilitation Act
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.”
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.
ref:
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
