03A10020
05-17-2001
Larry W. Cole, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Larry W. Cole v. United States Postal Service
03A10020
May 17, 2001
.
Larry W. Cole,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Petition No. 03A10020
MSPB No. PH-0752-98-0322-I-2
DECISION
On October 10, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Petitioner, a modified Special Delivery Clerk/Letter
Carrier at an agency facility in Baltimore, Maryland, alleged that he
was discriminated against on the bases of disability (major depression,
anxiety reaction, panic attacks, and a back ailment), sex (male),
religion (unspecified), and reprisal (prior EEO activity)<1> when on
May 18, 1998, he was sent for a fitness for duty examination and placed
on enforced leave from May 21, 1998 to June 23, 1998. On June 9, 1998,
petitioner filed a mixed case appeal with the MSPB. After a hearing, the
Administrative Judge found that the agency retaliated against Petitioner,
but found no discrimination on the other bases alleged. The MSPB accepted
petitioner's petition for review and reversed the finding of reprisal.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Background
Petitioner was assigned to a Modified Special Delivery Clerk/Letter
Carrier position at the agency's Druid Station in Baltimore, Maryland.
On several occasions, Petitioner's supervisor (S1), observed that he was
dazed and staring into space. When he confronted Petitioner about his
behavior, Petitioner used an aggressive tone of voice and quoted passages
from scripture. S1 perceived the quoted passages as threatening conduct
by Petitioner. Concerned with Petitioner's behavior, S1 contacted the
medical unit for advice. An agency contract physician (P1) advised S1
to direct Petitioner to report to the medical unit for a fitness for duty
examination. S1 complied with P1's medical advice. Petitioner underwent
a fitness-for-duty examination by P1 who initially designated Petitioner
as �fit for duty.� However, a few days later P1 changed Petitioner's
status to �unfit for duty,� and referred Petitioner to a specialist for
further evaluation. The reason P1 gave for the change in status was
that she wanted to be sure that Petitioner was seen by a specialist.
On May 21, 1998, the agency placed Petitioner on enforced leave.
The MSPB initial decision determined that Petitioner did not establish
discrimination based upon disability, sex or religion. However, it did
find that S1 retaliated against Petitioner. The agency filed a petition
for review challenging the administrative judge's finding of reprisal.
Petitioner did not file any cross petition or challenge the administrative
judge's findings of no discrimination.
In the MSPB appeal, Petitioner alleged that the action of placing him on
enforced leave without pay was in retaliation for the EEO complaint he
filed against S1 on April 14, 1998. The record reflected that Petitioner
had engaged in protected EEO activity. However, the MSPB rejected the
initial decision by the administrative judge because the record indicated
that S1 had no involvement with the fitness for duty process, other than
a meeting with P1 on April 29, 1998, in which S1 discussed with P1 the
concerns he had about Petitioner's behavior, and S1's completion of the
�Authorization for Medical Attention,� dated May 18, 1998.
According to the MSPB, the record also reflects that based upon
Petitioner's behavior, S1 referred Petitioner to P1 because he was
concerned with the health and safety of the workforce. According to
P1 and S1, P1 made the decision, alone, to refer Petitioner for a
fitness-for-duty examination.<2> While P1 initially concluded that
Petitioner was �fit for duty,� she changed her mind regarding Petitioner's
status and decided to refer Petitioner to a specialist before determining
that he was �fit for duty.� Although P1 changed her mind regarding
Petitioner's fitness for duty status, the MSPB found no evidence in the
record which indicated that P1 was influenced by any agency official
who was involved in or associated with Petitioner's retaliation claim.
The MSPB further found that �given the serious consequences that could
result from retaining a potentially dangerous employee on duty, the
agency's responsibility to maintain a safe workplace for all of its
employees, and the doctor's misgivings based on her observations and
independent medical judgement, we find that standing alone, [P1's]
concerns and resulting desire to assure herself that her initial
impression was accurate are not suspicious actions sufficient to invoke
the specter of reprisal.� The MSPB also noted that Petitioner failed
to establish that P1 was aware of his protected activity. Accordingly,
the MSPB reversed the initial decision and found no reprisal.
On October 10, 2000, Petitioner filed with the EEOC, a Petition
for Review of the MSPB decision. Specifically, the petition seeks
review of the finding of no reprisal by the MSPB final decision and the
finding of no disability discrimination by the MSPB initial decision.<3>
With respect to the reprisal claim, Petitioner claims that the record
evidence indicates that S1 and P1 had spoken prior to and after the
fitness-for-duty examination. In addition, Petitioner argues that
S1 even signed the form authorizing the fitness-for-duty examination.
Lastly, Petitioner noted that the agency's Employee and Labor Relations
Manual explicitly states that management can order fitness-for-duty
examinations at any time and repeat as necessary to safeguard the
employees or coworkers.
Petitioner also argues that the MSPB failed to address his second claim
(i.e., being placed in a non-pay status). According to Petitioner,
the record shows that S1 had full responsibility over that area.
Moreover, Petitioner argues that nothing in the agency's rules and
regulations requires management to place the employee in a non-pay
status pending the outcome of a fitness-for-duty evaluation. Lastly,
Petitioner argues that S1 gave inconsistent and contradictory reasons
for keeping Petitioner in a non-pay status.
Upon review of the record, we agree with the final decision of the
MSPB that there was no persuasive evidence in the record that P1 was
influenced by S1 to recommend a fitness-for-duty examination and place
Petitioner in an unfit-for-duty status. The record indicates that S1
spoke to P1 raising concerns about Petitioner's behavior. P1 advised
S1 to order a fitness examination. The record indicates that S1 simply
followed P1's recommendation. Nothing raised in Petitioner's petition
contradicts this finding by the MSPB.
With respect to the second claim, we find the record shows that placing
Petitioner in an unpaid leave status during the pendency of his fitness
for duty examination was a normal procedure for non-veteran employees,
and accordingly, S1 was just following established procedure. While there
is indication in the record that, as a veteran, Petitioner was permitted
to be placed on administrative leave with pay, the record supports the
finding that Petitioner's veteran's status was inadvertently overlooked.
Lastly, we disagree with Petitioner's argument that S1 gave inconsistent
testimony.
With respect to Petitioner's disability claim, assuming arguendo,
Petitioner is a disabled under the Rehabilitation Act, we nevertheless
find insufficient evidence of discriminatory animus with respect to his
alleged disabilities to warrant dissenting from the MSPB's initial and
final decisions. We also find that the fitness for duty examination
was motivated by genuine job related concerns which were consistent
with business necessity. (See Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act, pp. 6-12 EEOC Notice No. 915.002, July 27, 2000.)
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 17, 2001
__________________
Date
1 Petitioner also alleged that he had been deprived of employment rights
under the Uniformed Services Employment and Re-employment Rights Act
of 1994.
2 Petitioner has not presented specific contradictory evidence to rebut
this determination.
3 Petitioner fails, however, to articulate in his petition the basis to
reverse the MSPB's finding of no disability discrimination.