01A52441
08-25-2005
Anthony P. Cimo, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency Appeal No. 01A52441 Agency No. 03.066 Hearing No. 310-2004-00309X
Anthony P. Cimo v. Department of the Air Force
01A52441
August 25, 2005
.
Anthony P. Cimo,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency
Appeal No. 01A52441
Agency No. 03.066
Hearing No. 310-2004-00309X
DECISION
Complainant initiated a timely appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Material Handler II and Picking MHE
Operator at the agency's Army and Air Force Exchange Service facility,
filed a formal EEO complaint on February 8, 2005, alleging that the
agency discriminated against him on the bases of disability and age<0>
(D.O.B. August 25, 1948) when:
on April 30, 2003, he was told that there was no modified work available
and he was released;
the agency held money from his paycheck for pay period ending May 9,
2003;
on June 20, 2003, an agency employee phoned complainant's doctor after
complainant's hospitalization to inquire about his discharge conditions;
on or about May 26, 2003, he was not assigned to a specific forklift or
scanner;
on July 3, September 30, and October 27, 2003, he was sent for fitness
for duty examinations;
on or about August 17, 2003, after visiting the Waco Distribution Center,
rumors were spread about his conduct during his visit; and
on December 8, 2003, he was told to wait outside the building by Safety
and Security.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The AJ held that for claims 1 and 2, complainant had not
established a prima facie case because he did not meet the definition of
an individual with a disability and because complainant did not identify
a similarly-situated employee, outside his protected class, who was
treated more favorably under similar circumstances. The AJ held that
complainant could not prevail on claim 3 because the Rehabilitation Act
does not prohibit direct contact with an employee's doctor. The AJ
held that complainant did not establish a prima facie case on claim
4 because a similarly-situated, non-disabled employee was also not
assigned a forklift. The AJ held that the fitness for duty examinations
in claim 5 were job-related and consistent with a business necessity.
The AJ held that complainant could not prevail on claims 6 and 7 because
complainant was not aggrieved. Finally, with regard to all the claims,
the AJ found that the agency had legitimate, nondiscriminatory reasons
for its actions. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
BACKGROUND
Complainant visited his physician in late April, 2003, after suffering
from pain in his elbow, shoulder, and chest. His physician diagnosed
him as having osteoporosis and recommended that he be temporarily
restricted to lifting no more than 20 pounds and permanently restricted
to lifting no more than 40 pounds. The restriction was not compatible
with complainant's position as a Materials Handler II, which required
that he often lift up to 70 pounds. On April 30, 2003, the agency
sent complainant home because it could not immediately accommodate his
lifting restriction. HT at 24-27. The agency soon found complainant
a different position (Picking MHE Operator) that could accommodate his
lifting restriction. Id. Complainant started work as a Picking MHE
Operator on May 12, 2003.
Because of a payroll error, the agency initially did not pay complainant
the full amount for the period between April 30 and May 12, 2003.
The agency later corrected this error, and complainant was paid the
remaining amount in his May 23, 2003, paycheck. HT at 80.
As a Picking MHE Operator, complainant operated a forklift and scanned
bar codes on warehouse merchandise using a handheld scanner. On or about
May 26, 2003, he was not assigned to a specific forklift or scanner.
Complainant stated that he had to search through the warehouse to
locate a forklift so that he could do his job. HT at 58. Complainant
also stated that all the other employees in his position were assigned
specific forklifts and had their own keys to the forklifts. Id.
According to complainant's foreman, every employee in complainant's
position was required to sign out a scanner at the beginning of his or
her shift and then return the scanner at the end of the shift. HT at 50.
Additionally, the foreman testified that another Picking MHE Operator was
also not assigned a specific forklift that day. HT at 59. Further, the
foreman stated that the reason complainant could not locate his forklift
on the day in question was likely because a night shift employee had
left the forklift in another part of the warehouse. HT at 60.
According to agency employees, complainant's behavior started to become
erratic.<0> One supervisor testified that complainant had appeared
�agitated� (HT at 66), and another cited an occasion where she was
frightened by the �glassy look on [complainant's] face.� Investigative
Report (ROI), Tab P at 3. Additionally, complainant told a supervisor
that he had been having �bad thoughts� about two agency employees and
about his wife (also an agency employee). ROI at 33. On June 17, 2003,
complainant attempted suicide and was subsequently hospitalized. ROI,
Tab I, affidavit at 4.
On June 20, 2003, the day of complainant's release from the hospital, an
agency nurse phoned complainant's doctor to inquire about complainant's
discharge conditions. Id. The purpose of the call was to find out
if complainant was fit to return to work. Id. The doctor told the
agency nurse that the complainant had been prescribed medication and
that he was capable of returning to work. The nurse and other agency
employees, however, felt differently, particularly in light of the fact
that complainant did not have any follow-up appointments scheduled. Id.
Therefore, the agency ordered complainant to undergo a fitness for duty
examination with a psychiatrist and placed complainant on administrative
leave pending the results of the exam.
Complainant underwent a fitness for duty examination on July 3, 2003.
ROI, Tab I. However, the psychiatrist (P1) who examined him never
reported his findings to the agency, despite the agency's repeated
attempts to contact him. Id. Because P1 never submitted a report,<0>
the agency scheduled a second fitness for duty examination for September
30, 2003. This second psychiatrist (P2) referred complainant to a
psychologist for further testing, which took place on October 27, 2003.
Based on these two examinations, P2 concluded that complainant should
not return to work �in order to prevent any potential adverse incidents.�
Notice of Appeal at 95. In a letter dated November 21, 2003, the agency
informed complainant of P2's findings and told complainant that he
would be moved from administrative leave to sick leave, and that when
his sick leave was exhausted, he would be placed on leave without pay.
ROI, Tab D.
Meanwhile, on or about August 17, 2003, while complainant was still on
administrative leave, complainant stopped by the agency premises in order
to bring his wife a change of clothing. His wife changed her clothes,
and then complainant left. ROI at 30. Later that day, complainant's wife
heard that rumors were being spread about his conduct during the visit.
These rumors alleged that complainant had escaped from a mental hospital
and had been on the premises with a gun. ROI at 16. However, it is
undisputed that complainant's visit to the agency was uneventful and
nondisruptive. ROI at 30.
On December 8, 2003, complainant had an appointment with an EEO
Investigator on the agency premises. Complainant had arrived early,
and was waiting in the break room when a security employee approached
him and asked complainant why he was there. Complainant replied that
he had an appointment. The security employee told complainant that he
should wait outside the nurse's office. Complainant sat by the nurse's
office and then went outside to smoke a cigarette. When he came back
inside, the security employee told complainant that he would have to
wait outside. Later, the security employee followed complainant in the
hallway when complainant took a bathroom break from his meeting with
the EEO Investigator. ROI, Tab C, affidavit at 6; ROI at 30-33.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
I. Claims 6 and 7: Failure to state a claim
Upon review, the Commission finds that claims 6 and 7 were properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. In order to state a claim under the Rehabilitation Act,
complainant must show that he was aggrieved. To be considered aggrieved,
a complainant must allege a direct and personal deprivation at the hands
of the employer or an unresolved personal harm or potential for harm.
A complainant also must show that he suffered harm or loss with respect to
a term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). In the present case, complainant has not met these
requirements. In claim 6, complainant alleges that rumors had been
spread that he had escaped from a mental hospital and had brought a gun
to the workplace. While both the agency and complainant acknowledge
that these rumors were spread and that these rumors were unfounded,
this does not make the complainant aggrieved because it did not cause
him a personal deprivation at the hands of the employer. There is no
indication that these rumors affected any term, condition, or privilege
of complainant's employment. Complainant was on administrative leave
at the time of the rumor. The record shows that the only reason he was
aware of the rumors was that his wife told him about them. ROI at 30.
Finally, the record indicates that agency management did not give any
credence to these rumors. Id. In claim 7, complainant alleges that he
was forced to wait outside the building before his appointment with the
EEO investigator on December 8, 2003. Again, this incident did not render
complainant aggrieved because although he may have been inconvenienced
and humiliated (HT at 109), being forced to wait outside did not affect
a term, condition, or privilege of employment.
II. Claims 1, 2, and 4: prima facie case
The Commission concurs with the AJ that, with regard to claims 1, 2,
and 4, complainant failed to establish a prima facie case of disability
discrimination. Assuming arguendo that complainant was a qualified
individual with a disability, complainant has failed to show that any
similarly-situated, non-disabled individuals were treated more favorably
than the complainant. In claim 1, complainant states that he was sent
home because no modified work was available for him, and in claim 2,
complainant states that he was not paid the proper amount while he
was out of work. What complainant has not shown, however, is that any
similarly-situated, non-disabled employees were treated more favorably.
As for claim 4, the record indicates that a similarly-situated employee
was also not assigned a specific forklift. HT at 59. Assuming arguendo
that claim 1 raises an issue of reasonable accommodation, we find that
the agency did accommodate complainant when it offered him the Picking
MHE Operator assignment.
III. Claims 5 and 3: Fitness for duty examination and disability-related
inquiry
A. Fitness for duty examination (claim 5)
The AJ was correct in holding that the complainant's fitness for duty
examinations were acceptable because they were job-related and consistent
with a business necessity. �When a need arises to question the ability
of an employee to do the essential functions of his/her job or to question
whether the employee can do the job without posing a direct threat due to
a medical condition, it may be job-related and consistent with business
necessity for an employer to make disability-related inquiries or require
a medical examination.� See Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (ADA) (July 27, 2000) (web version) (Guidance), at 14.
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. Id. at 15.
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. Here, the
evidence shows that the agency had objective evidence that complainant
may have posed a direct threat due to his mental disability. Complainant
became agitated on a number of occasions, had told a supervisor that he
was having �bad thoughts� about other employees and about his wife, and
he had attempted suicide. Therefore, the agency was within the bounds of
the Rehabilitation Act when it ordered the fitness for duty physicals.
Although complainant was required to undergo three examinations,
the record shows that this was reasonable under the circumstances.
Complainant underwent his first examination with P1 on July 3, 2003.
P1, however, never provided a report to the agency, despite the agency's
repeated requests that he do so. Therefore, the agency had complainant
examined by P2 on September 30, 2003. P2 referred complainant for
an examination with a psychologist on October 27, 2003. After this
appointment, P2 reported his assessment to the agency. Notice of Appeal
at 89-95.
B. Disability-related inquiry (claim 3)
The AJ correctly stated that the agency did not violate the Rehabilitation
Act when the agency nurse contacted complainant's physician without
complainant's consent. Again, an employer may make disability-related
inquiries that are job-related and consistent with a business necessity.
As stated above, the agency was entitled to make a disability-related
inquiry because of its objective belief that complainant posed
a direct threat. It is true that the agency contacted the doctor
without complainant's consent. However, whether an agency may contact an
employee's physician without his or her permission is outside the purview
of the Rehabilitation Act. See Jaskot v. Dept. of Veterans Affairs, EEOC
Appeal No. 01996450 (June 19, 2002) (�[F]ailure of an agency to obtain
a release prior to making an otherwise permissible disability-related
inquiry does not violate the Rehabilitation Act�).
CONCLUSION
For the reasons stated above, the Commission finds that the AJ's findings
of fact are supported by substantial evidence in the record. We discern
no basis to disturb the AJ's decision. Therefore, we AFFIRM the agency's
final order.
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 (S0900)
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 (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
August 25, 2005
__________________
Date
0 1Although the investigative report and intake questionnaire list
disability and age discrimination as bases of complainant's complaint,
complainant stated at the hearing that his complaints were solely
disability-based. Hearing Transcript (HT) at 23-24. Additionally,
the substance of both the investigation and the hearing centered
on disability-related claims and focused almost entirely on the
disability-related aspects of his claims.
0 2The actual date that complainant's behavior started to become erratic
is unclear, but the records indicate that it was probably sometime in
early to mid-June.
0 3The record does show a fax in which P1 indicates, without explanation,
that complainant should not return to work for approximately four weeks.
ROI, Tab EE.