Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120122418 (E.E.O.C. May. 9, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120122418

Hearing No. 451-2011-00194X

Agency No. HS-CBP-01393-2010

DECISION

On May 14, 2012, Complainant filed an appeal from the Agency’s April 6, 2012, final order
concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Technician, GS-
1802-7, at the Agency’s El Paso Field Office in El Paso, Texas. On September 27, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), national origin (unspecified), color (black), disability (sleep
apnea and congenital spinocerebellar disease), and reprisal for prior protected EEO activity
when: (1) on April 2 and 21, and June 14, 2010, Complainant’s second-level supervisor (S2)
issued him notices to provide administratively acceptable medical documentation; and (2) on
June 8, 2010, S2 contacted the office of Complainant’s physician without Complainant’s
authorization.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ found that, after
viewing the evidence in a light most favorable to Complainant, a decision without a hearing
0120122418

2
was appropriate as there were no genuine issues of material fact. The AJ issued a decision
without a hearing on March 9, 2012, finding no discrimination. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. On appeal, Complainant contends that the AJ erred
in issuing a decision without a hearing as there are material facts in dispute.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. With respect to claim (1),
assuming, without finding, that Complainant is an individual with a disability, we concur with
the AJ’s determination that Complainant has not shown that the Agency violated the
Rehabilitation Act. Under the Rehabilitation Act, medical examinations and disability-related
inquiries of employees must be job-related and consistent with business necessity. 42 U.S.C.
§12112(d)(4)(A); 29 C.F.R. § 1630.14(c). An examination or inquiry is job-related and
consistent with business necessity when the employer has a reasonable belief, based on
objective evidence, that the employee's ability to perform essential functions will be impaired
by a medical condition or the employee will pose a direct threat because of a medical
condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act (ADA), EEOC Notice
915.002 (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations).
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Here, the record shows that the Agency had a reasonable belief that Complainant could not
perform the essential functions of his position due to a medical condition. Between February
and August 2010, management officials repeatedly found Complainant in positions they believe
indicated he was asleep on duty and had to be woken up. Management officials discussed this
conduct with Complainant and informed him that there were increasing problems with his work
performance. The record shows that, in response, Complainant stated that he suffered from
sleep apnea which necessitated “nodding off” during the work day. S2 subsequently issued
Complainant a letter requesting medical documentation to support a request for reasonable
accommodation. When Complainant failed to provide the documentation, S2 issued a second
letter in response to which Complainant provided a note from his cardiologist stating that
Complainant “is receiving treatment for sleep apnea.” S2 issued a third letter requesting
appropriate medical documentation, dated June 4, 2010, again requesting documentation
necessary to support a request for reasonable accommodation. Complainant failed to supply
any additional documentation. Upon review of the record, we find that the Agency acted on the
basis of objective evidence and that the requests for medical documentation were job-related
and consistent with business necessity.

To the extent Complainant is alleging he was denied a reasonable accommodation, under the
Commission’s regulations, an Agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a disability
unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R.
§1630.9. We note that when making an accommodation request, an employee is not required
to use the “magic” words “reasonable accommodation.” See Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.1. Instead, the
employee need only inform the Agency that he needs an adjustment or change at work for a
reason related to a medical condition. See Triplett-Graham v. U.S. Postal Service., EEOC
Appeal No. 0120044720 (February 24, 2006). However, an Agency is permitted to seek
documentation where it is necessary to determine that the individual has a covered disability
for which the requested accommodation is necessary. See 29 C.F.R. 1630.14; Ross v. Dept. of
the Treasury, EEOC Appeal No. 01982798 (August 2, 2001). Where an employee fails, as
here, to provide the medical documentation requested, then the employee is not entitled to a
reasonable accommodation. See id., at Q. 6. Accordingly, we find that Complainant failed to
show that the Agency violated the Rehabilitation Act.

Finally, with respect to claim (2), the record shows that following Complainant’s failure to
provide a response to S2’s second request for appropriate medical documentation, on June 8,
2010, S2 contacted the office of Complainant’s medical provider. S2 states that he obtained
information on Complainant’s behalf with respect to making appointments, insurance coverage,
and relevant medical technologies. S2 states he did not obtain, nor attempt to obtain, any
medical information, nor did he speak with Complainant’s physician. S2 emailed Complainant
that same day and informed Complainant as to what had transpired during the call.
0120122418

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Complainant does not contend that S2 attempted to obtain medical information. We find that
S2’s actions were, therefore, not a violation of the Rehabilitation Act.1

Finally, we concur with the AJ’s determination that assuming, arguendo, Complainant
established a prima facie case of race, color, national origin, and reprisal, the Agency
articulated legitimate nondiscriminatory reasons for its actions, as set out above. We find that
Complainant failed to show that these articulated reasons were pretextual or that the Agency’s
actions were motivated by discriminatory or retaliatory animus.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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

1 We note, to the extent Complainant is alleging that S2’s actions constitute a violation of the
Health Insurance Portability and Accountability Act (HIPAA), the Commission has previously
determined that matters concerning the HIPAA are not within regulations enforced by the
Commission. See Grove v. U.S. Postal Serv., EEOC. Appeal No. 0120110456 (Jan. 5, 2012);
Price v. U.S. Postal Serv., EEOC Appeal No. 0120111033 (Dec. 8, 2011): Scott v. U.S.
Postal Serv., EEOC Appeal No. 0120101539 (Aug. 13, 2010); Cromer v. U.S. Postal Serv.,
EEOC Appeal No. 0120083518 (Apr. 22, 2010).
(EEO MD-110), at 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
0120122418

5
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

(S0610)
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

(Z0610)
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 9, 2013
Date