0120073540
05-27-2010
Roger E. Carlton, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Roger E. Carlton,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120073540
Agency No. 2005-0034-R04
DECISION
On August 5, 2007, complainant filed an appeal from the agency's July 6,
2007 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant was discriminated against on the bases of disability
(clinical depression, chronic psoriatic arthritics, and short-term
cognitive memory loss), age (54), reprisal (prior EEO activity and
Whistleblower activity), and in violation of the Privacy Act.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Environmental Engineer in the agency's Science and Ecosystems
Support Division, Environmental Investigations Branch, Air and Superfund
Section, U.S. EPA Region 4 in Athens, Georgia. Complainant's Affidavit
(Complainant's Aff.), at 2. Complainant's major duties involved
conducting field investigations at abandoned hazardous waste sites
within the eight states that comprise Region 4. Id. at 3. The "Physical
Demands" portion of his position description states that the work involves
"regular and recurring field inspections, investigations, and studies
where there is considerable walking, bending, climbing, stopping,
as well as carrying, transporting and installing of field equipment."
Report of Investigation (ROI), at Exh. F-21. The "Work Environment"
portion of his position description states that the work involves "regular
and recurring exposure to potentially dangerous or hazardous situations"
and that "frequent travel (25-40 percent), primarily by government owned
conveyance, is required." Id. According to complainant's estimates, the
division between field work and office work is "50/50," with his field
work generating the majority of his office work. Complainant's Aff.,
at 3.
In a February 5, 2004 letter, a follow-up to a conversation earlier
that day, complainant informed his first-level supervisor (S1)1 that he
suffers from clinical depression, arthritis, and cognitive (short term)
memory loss. ROI, at Exh. F-10.
In a February 27, 2004 letter to complainant, S1 summarized their
February 5, 2004 conversation. ROI, at Exh. F-11. S1 had asked if
complainant needed a special accommodation, explained to him the agency's
obligations to provide reasonable accommodations, and informed him that
supporting medical documentation may be required for a request. Id.
S1 noted that complainant had stated during that conversation that he
was not requesting an accommodation at that time. Id.
In a March 4, 2004 letter to S1, complainant wrote, in reference to
his medications, "The drugs cause me to become very lethargic. I never
know how long the lethargia [sic] will last. It has lasted as little as
one day and up to several days." Id. In addition, complainant wrote,
"I would ask that you consider the arthritic condition as well as my
mental illness when I am task [sic] to perform duties that I may not be
capable (at the moment) of performing." Id. The agency interpreted the
above statement as a request by complainant for reasonable accommodation.
ROI, at 138.
In a March 17, 2004 memorandum responding to complainant's March 4, 2004
letter, S1 informed him that until a physician consulted by the agency had
reviewed his situation, he was restricted from conducting any field work.
ROI, at Exh. F-12. In addition, S1 asked complainant for an update on
his current workload so that S1 could adjust his assignments. Id.
On March 25, 2004, at the agency's request, complainant signed a medical
release authorizing his personal physicians to disclose information
to a Federal Occupational Health Service (FOHS) physician. ROI, at
Exh. F-14.
In an April 20, 2004 memorandum, S1 assigned complainant an interim
list of office duties to perform,2 pending the FOHS physician's medical
review of complainant's medical condition and work requirements. ROI,
at Exh. F-13.
In an April 20, 2004 email, complainant asked S1 to clarify why he was
restricted from driving a government vehicle or conducting field work.
ROI, at Exh. F-18. In a May 4, 2004 email, S1 responded that the
restriction was based on medical information that complainant had
previously provided to S1. Id. Specifically, the agency was concerned
about the inherently dangerous conditions that could be present at
a project site and did "not want to place [him] in a situation where
[he] may be a danger to [him]self or others." Id. According to S1, the
agency was "using the utmost caution" in complainant's assignments until
it received the completed medical review from the FOHS physician. Id.
In a May 12, 2004 letter, one of complainant's personal physicians
wrote that the FOHS physician had wanted to determine to what degree
complainant could perform field work for the agency. ROI, at 129. In a
May 12, 2004 letter to the agency's Local Reasonable Accommodations
Coordinator (LORAC), the FOHS physician found that, based on the
information provided, complainant would not be able to perform all the
physical requirements of his position because he would be limited in
his ability to carry equipment, to walk on rough terrain, and to climb.
ROI, at Exh. F-15.
From June 2004 to August 2004, complainant exchanged a series of emails,
memoranda, and letters with S1 and the LORAC regarding management's access
to the FOHS physician's report for the reasonable accommodation process.
ROI, at Exh. F-16, F-18. Complainant refused to allow management to
review the report, claiming that S1 had erroneously assumed he had
requested a reasonable accommodation. ROI, at Exh. F-18. Further,
complainant wrote to S1 that he considered "this parade of emails and
other memorandums on 'Official Letterhead' as an excruciating form of
psychological harassment." Id.
In an October 22, 2004 email, LORAC determined that, in the absence
of medical documentation and an authorization for management to
review the FOHS physician's report, complainant was determined not
to be an individual with a disability under agency regulations and the
Rehabilitation Act. ROI, at Exh. F-17. The email cited several occasions
from August 2004 to October 2004 where complainant continued to delay
providing medical information for the reasonable accommodation process.
Id.
On January 12, 2005, complainant met with his third-level supervisor
(S3) and provided letters from his personal physicians stating that his
medication did not make him drowsy during the day and it was safe for him
to drive. ROI, at Exh. F-19. After the meeting, S3 lifted complainant's
duty restriction. ROI, at Exh. F-20.
On February 4, 2005, complainant filed an EEO complaint alleging that he
was discriminated against and subjected to a hostile work environment
on the bases of disability (clinical depression, chronic psoriatic
arthritis, and short-term cognitive memory loss), age (54), reprisal
(prior EEO activity3 and Whistleblower activity), and in violation of
the Privacy Act when:
1. from March 2004 until January 2005, management prevented him from
operating or riding4 in a government vehicle;
2. from March 2004 until January 2005, management did not provide him
with work assignments commensurate with his position and grade; and
3. on an unspecified date, management released his confidential medical
documents without his authorization.
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). When complainant did
not request a hearing within the regulatory time-frame, on April 29, 2005,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The agency dismissed complainant's complaint for untimely contact with an
EEO Counselor. ROI, at Exh. C-1. Complainant subsequently appealed the
agency's decision to the Commission. The Commission remanded the case to
the agency for further processing in Roger E. Carlton v. Environmental
Protection Agency, EEOC Appeal No. 01A54250 (October 25, 2005). ROI,
at 113-17. Subsequently, on July 6, 2007, the agency issued a final
decision finding that complainant failed to prove that he was subjected
to discrimination as alleged. Agency's July 6, 2007 Final Decision
(FAD), at 1.
Specifically, the agency found that that complainant failed to establish a
prima facie case of discrimination based on disability, age, or reprisal.
Id. at 15. The agency did not address complainant's claim of reprisal
based on whistleblower activity, noting that such claims are not covered
by the EEO statutes enforced by the Commission. Id. at 2. The agency
found that complainant did not provide any medical documentation to show
that he is disabled under the Rehabilitation Act; that there was no
evidence that substantially younger, non-disabled, similarly-situated
employees had been treated differently; and that there was no causal
connection between complainant's prior EEO activity and management's
actions as the issues were unrelated and occurred more than a year apart.
Id. at 18. The agency then assumed, arguendo, that complainant had
established a prima facie case of discrimination on the alleged bases
and found that management articulated legitimate, nondiscriminatory
reasons for its actions. Id. at 21. Further, the agency found that
complainant failed to introduce any persuasive evidence which would
tend to suggest that management was motivated by discrimination. Id.
Regarding complainant's claim of harassment, the agency found that the
alleged incidents were not sufficiently severe or pervasive to have
affected the terms and conditions of complainant's employment, nor
to have created a hostile work environment. Id. at 20-21. Finally,
the agency found that there was no evidence that complainant did not
receive appropriate work assignments or that complainant's supervisors
were given access to the FOHS physician's report. Id. at 19.
CONTENTIONS ON APPEAL
Complainant did not submit a statement in support of his appeal.
The agency requests that we affirm its final agency decision. Agency's
Appeal Brief, at 1. The agency asserts that complainant initiated the
interactive process when he notified S1 that he had impairments that
might limit his ability to perform the essential functions of his job
and that, because the agency had received sufficient information to
trigger the interactive process, it had acted appropriately in assigning
temporary, non-driving duties to complainant until it received further
medical information. Id. at 7-8.
ANALYSIS AND FINDINGS
Standard of Review
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").
Whistleblower Retaliation
Initially, we find that the agency properly dismissed reprisal for
whistleblowing as a basis for complainant's complaint. It is well
settled that engaging in whistleblowing is not protected EEO activity.
See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,
1996).
Restriction on Operating a Government Vehicle
The Rehabilitation Act places certain limitations on an employer's ability
to make disability-related inquiries or require medical examinations of
employees. We note that we need not determine whether complainant is an
individual with a disability because the Rehabilitation Act's limitations
regarding disability-related inquiries and medical examinations apply
to all employees. See EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with
Disabilities Act, No. 915.002 (July 27, 2000). Generally, an employer
make only seek information about an employee's medical condition when
it is job-related and consistent with business necessity. Id. at
Question 5. This means that the employer must have a reasonable belief
based on objective evidence that an employee will be unable to perform the
essential functions of his job because of a medical condition, or that the
employee will pose a direct threat because of a medical condition. Id.
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 ability to perform
essential functions of the job or will result in a direct threat. Id.
It is the burden of the employer to show that its disability-related
inquiries and requests for medical examination are job-related and
consistent with business necessity. See Cerge v. United States Department
of Homeland Security, EEOC Appeal No. 0120060363 (October 9, 2007).
Assuming, without so finding, that complainant established a prima facie
case of disability, age, and reprisal discrimination, we find that the
agency's actions were job-related and consistent with business necessity.
S2 attested that the restriction placed on complainant was based on
information complainant provided to management indicating that he was
taking medication that could have interfered with his ability to perform
his full range of duties. ROI, at Exh. F-2, 4. S3 attested that the
agency was concerned about exposing complainant and other staff to
potential harm due to complainant driving to and working at potentially
dangerous Superfund sites. ROI, at Exh. F-3, 2-3. The record shows that
complainant voluntarily disclosed to S1, in a March 4, 2004 letter, that
his medications cause him to become "very lethargic" and that he "never
know[s] how long the lethargia [sic] will last." ROI, at Exh. F-11.
In addition, the record shows that the field work portion of complainant's
position involves "regular and recurring exposure to potentially dangerous
or hazardous situations" and "frequent travel (25-40 percent), primarily
by government owned conveyance." ROI, at Exh. F-21. As a result,
complainant was temporarily restricted, beginning in March 2004, from
driving a government vehicle and conducting field work, pending the FOHS
physician's review of complainant's medical condition as it related to
his work duties. ROI, at Exh. F-12. Further, the record shows that in
January 2005, after complainant provided medical documentation from his
personal physicians stating that it was safe for him to drive and conduct
field work, the agency removed this restriction and complainant resumed
his full duties. ROI, at Exh. F-19, F-20. Upon review of the evidence,
we find that the agency conducted an objective individualized assessment
of complainant's medical condition and has established that its actions
were job-related and consistent with business necessity.
Failure to Provide Work Assignments Commensurate with Position and Grade
Complainant asserts that he was "left with no duties" and "not given
any work assignments from March 2004 until after January 2005" while the
agency restricted him from driving a government vehicle and conducting
field work. Complainant's Aff., at 6. After a thorough review of the
record, however, the Commission is not persuaded, by a preponderance of
the evidence, that complainant was not provided with appropriate work
assignments during this time. On the contrary, the record shows that S1
was aware of how the restriction would impact complainant's workload and
made efforts to give him alternative work. In a March 17, 2004 memorandum
to complainant, S1 instructed complainant to provide a detailed status
report of his current workload so that S1 could adjust his assignments.
ROI, at Exh. F-12. In an April 20, 2004 memorandum to complainant, S1
provided complainant with an interim list of duties to perform and noted
that management had assembled a variety of duties from various Branches
within the Division, as there was no existing suitable position to which
complainant could be reassigned. ROI, at Exh. F-13. S3 attested that
complainant was assigned to complete reviews of technical reports and
would help other field staff do engineering reports. ROI, at Exh. F-3,
4.
Unauthorized Disclosure of Confidential Medical Documentation
Complainant asserts that the LORAC, S1, and the agency's Associate
Regional Counsel (ARC) were given access to the FOHS physician's report,
even though they did not have authorization to review his information.
Complainant's Aff., at 7. To the extent that complainant alleges
a violation of his privacy rights under the Privacy Act, 5 U.S.C. �
552(g)(1), we find that this is outside the Commission's jurisdiction.
See Bucci v. Department of Education, EEOC Request Nos. 05890289,
05890290, 05890291 (April 12, 1989). We note, however, that the
Rehabilitation Act also provides that information obtained regarding
the medical condition or history of any employee shall be treated as
a confidential medical record. 29 C.F.R. �
1630.14(c).
After a thorough review of the record, the Commission determines that the
weight of the evidence does not support complainant's contention that
the agency improperly disclosed his confidential medical information.
Although the LORAC had access to complainant's report, we find that
LORAC had implicit authorization to review this information by virtue
of his role as the main point of contact in the agency's reasonable
accommodation process. See 29 C.F.R. � 1630.14(c). The LORAC's main
responsibility is to "assist in coordinating the processing and provision
of reasonable accommodation." ROI, at Exh. F-23, 7. The record shows
that the agency interpreted a statement in complainant's March 4,
2004 letter to S1 as a request for reasonable accommodation. ROI,
at 138. Accordingly, the agency requested further medical information
from complainant and complainant complied by signing a March 25, 2004
medical disclosure authorizing the FOHS physician to consult with his
personal physicians. ROI, at Exh. F-14. The LORAC attested that he did
not disclose the information in the report to any management officials.
ROI, at Exh. F-4, 3.
The ARC attested that she received a copy of complainant's medical report
as part of documents submitted by complainant's attorney regarding a
whistle-blower claim. The ARC further attested that she did not disclose
the report or discuss its contents with any management official. ROI,
at Exh. F-5, 2. Accordingly, we find no violation regarding disclosure
of complainant's medical documentation.
Harassment
Complainant alleges that he was subjected to hostile work environment
harassment based on his alleged disability, age, and in reprisal for prior
EEO activity when he was "prevented from being a productive employee" due
to management placing restrictions on him and failing to provide him with
work assignments. Complainant's Aff., at 6-7. Complainant attests that
he was "ostracized" by S2, S3, and his co-workers because management's
actions set him apart from others and he could not carry his portion of
the workload. Id. at 8. Specifically, he asserted that S2 and S3 do not
acknowledge his presence when they pass by him at work and co-workers
do not select him to work on their projects or speak to him unless he
seeks them out. Id. In addition, complainant claims that management's
attempts to obtain his authorization to review the FOHS physician's
report were a form of "psychological harassment." ROI, at Exh. F-18.
To establish a claim of harassment complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of
was based on his statutorily protected classes; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March
8, 1994).
We find that the evidence in the record is insufficient to support
a finding that management's actions toward complainant were based on
his alleged disability, age, or in reprisal for prior EEO activity.
In addition, we find that management's actions were not sufficiently
severe or pervasive to alter the conditions of complainant's employment or
to create an abusive working environment. Further, although complainant
noted that he felt harassed by the "parade of emails and other memorandums
on 'Official Letterhead'" regarding the disclosure of the FOHS physician's
report, there is no indication that the written communications were
excessive or that their content or tone were inappropriate. ROI, at
Exh. F-18. As such, we find that complainant has not established his
claim of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 27, 2010
Date
1 S1 retired from the agency in January 2005 and declined to be
interviewed by the EEO investigator when contacted after his retirement.
ROI, at Exh. F-25.
2 The list of duties included the following: (1) assume purchase
card holder duties and responsibilities, if suitable arrangements
could be made for him to take the government purchase card training;
(2) continue to work on projects that are already underway, including
meetings and/or conference calls; (3) provide technical support in the
review of SESD technical documents including QAPPs, Study Plans, etc.;
(4) provide in-house technical training to staff and others; and (5)
other similar duties to be assigned as needed. ROI, at Exh. F-13.
3 S1 and complainant's second-level supervisor (S2) were involved in
complainant's prior EEO activity. ROI, at 52.
4 Complainant does not specifically address the claim that he was
restricted from riding in a government vehicle in his affidavit.
Complainant's Aff. It appears that this particular restriction was part
of complainant's larger restriction of not conducting field work.
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0120073540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073540