01A01605
09-29-2003
Fredric B. Bauer, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Fredric B. Bauer v. Department of Justice
01A01605
September 29, 2003
.
Fredric B. Bauer,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A01605
Agency No. P-97-9125
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
ISSUE PRESENTED
The issue presented herein is whether complainant has shown that the
agency discriminated against him on the bases of disability (hypertension,
diabetes mellitus, gout, and mild emphysema) and age (D.O.B.: September
29, 1937) when:
He was not informed of the requirement to pass the physical ability test
prior to accepting his appointment to the position of medical officer;
His request for a reasonable accommodation regarding diabetes was not
honored on his first day at training at the agency's facility in Glynco,
Georgia; and
A medical waiver of the physical ability test (PAT) was not granted
by the agency's director and he was terminated during his probationary
year from the position of medical officer.
BACKGROUND
The record reveals that during the relevant time, complainant was hired as
a Medical Officer at the agency's Federal Bureau of Prisons institution
in Allenwood, Pennsylvania. Complainant sought EEO counseling and
subsequently filed a formal complaint as referenced above on May 8, 1997.
The record indicates that complainant was informed in December 1996,
that he was a final candidate for the position of medical officer.
He was asked to go to Fort Dix, New Jersey for a physical examination
in order to be appointed. He reported to the physical and was called
to start on February 3, 1997. In January 1997, complainant indicated
that he was informed that he would have to go to an agency facility in
Georgia for training but not of the physical exam. He was told that
he had to pass academic, self defense, and firearms tests. When he
reported to the Allenwood facility, he became aware of the physical
proficiency test and was shown a video on the test. On March 16, 1997,
complainant was sent for training to the agency's Glynco facility.
Prior to departing, complainant indicated that he informed the agency of
his need for a refrigerator for his insulin. When he arrived, there was
no refrigerator in his hotel room. He contacted management in Georgia
who informed him that they were aware of his request but they had no
provisions for it. The next day at training, someone at the agency
provided complainant a small foam cooler. He indicated that it worked
but he had to fill it with ice every six hours.
At the training facility, complainant had no problems completing the
firearms and the self defense portions of training. On day three,
the PAT began. A medical official at the training site questioned
whether complainant should undergo the test. The PAT consisted of five
components which had to be completed successfully: (1) the dummy drag -
requiring an employee to drag a seventy-five pound dummy continuously for
three minutes for at least 694 feet; (2) the ladder climb - requiring
an employee to climb up and down an eight foot ladder in order to
retrieve an object within seven seconds; (3) an obstacle course to be
completed within fifty-eight seconds; (4) a quarter-mile run and cuff -
an employee must run a quarter of a mile and then place handcuffs on a
cooperative individual within two minutes and forty-five seconds; and
(5) the stair climb - an employee wearing a twenty pound weighted belt
must run up and down two flights of stairs three times within forty-five
seconds. Complainant passed Components (2), (3), and (5). He completed
a portion of Component (1). He, however, could not run the quarter mile.
He indicated that due to his diabetes, he has neuropathy in his feet which
did not allow him to run. Complainant was given a second opportunity
to complete Component (4), however he declined stating that he could not
run no matter how many days of rest he was given. He requested that the
agency waive the PAT as it had with the maximum age requirement which
allowed him to be hired for the position. The agency denied the waiver
and complainant was sent back to Allenwood. Complainant was terminated
from his position based on his failure to complete the PAT.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish his
claims of discrimination. Complainant filed this appeal without comment.
ANALYSIS AND FINDINGS
Age Discrimination
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claim (1), complainant alleged that because of his age, he was never
informed of the PAT during his interview. The Human Resources Manager
(HR Manager) averred that complainant was interviewed before the agency
implemented the PAT procedures. Therefore, he would not have been
informed of the PAT at that time. The agency had implemented the PAT
procedures in November 1996 to be effective January 1, 1997. The first
opportunity the agency had to inform complainant of the PAT was in
February 1997, when he was shown the PAT video during training. Upon
review, we find that the agency provided legitimate, nondiscriminatory
reason for not informing complainant of the PAT at his interview.
Complainant failed to establish that the agency's reason was pretext.
In claim (3), complainant alleged that on the basis of his age, he
was denied a waiver and was subsequently terminated from his position.
The Assistant Director for Human Resources Management Division (Assistant
Director) averred that there are no waivers for the PAT. Therefore, no
waiver was given to complainant.<1> The Assistant Director stated that
complainant did not actually fail the PAT, he refused to complete the PAT.
Based on his refusal, he was removed from his position. The Commission
finds that the agency articulated legitimate, nondiscriminatory reasons
for denying the waiver and removing complainant.
As to pretext, complainant claimed that the agency could have provided
him a waiver since it had already waived the maximum age requirement
for him. The agency indicated that complainant's position allows for
waivers for age because his position was hard to fill. However, it
could not grant such a waiver to the PAT. The HR Manager averred that
all positions in Allenwood are law enforcement so all must pass the PAT.
The Assistant Director stated that the PAT was developed to ensure that
the agency's staff is physically able to do what is required of them in
a correctional environment. He further indicated that it did not matter
whether the employee was a secretary, doctor, lawyer, or correctional
officer, the first responsibility of all the employees is the security
of the institution. Accordingly, we find that complainant failed to show
that the agency's reason as to the removal was pretext for discrimination
based on age.
Disability Discrimination
To bring a claim of disability discrimination, complainant must first
establish that he is an individual with a disability within the meaning
of the Rehabilitation Act. For purposes of analysis, we assume that
complainant is an individual with a disability.
Complainant also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). We find that
complainant failed to show that he was qualified in that he failed
to meet the agency's qualification standard in the form of the PAT.
We note that it is unlawful for an agency to use qualification standards,
employment tests or other selection criteria that screen out or tend to
screen out an individual with a disability or a class of individuals
with disabilities, on the basis of disability, unless the standard,
test or other selection criteria, as used by the agency, is shown to
be job-related for the position in question and is consistent with
business necessity. 29 C.F.R. � 1630.10.
In the case at hand, the agency has met its burden. The Commission notes
that complainant's position is that of a Medical Officer. However,
the Chief of Human Resources (Chief) averred that all employees in
institutions are correctional workers first. The Program Statement for
PAT notes that all employees are responsible for maintaining security in
the event of an emergency. Therefore, the Chief indicated that there is
no difference between a correctional officer and a doctor. Furthermore,
in a penal institution, everything is a potential emergency situation.
The Chief noted that at any point, an employee may have two inmates
next door and a fight might break out that the employee must stop.
He indicated that when you have inmates around, an agency employee will
have to do physical things.
Based on the physical needs of institutional positions, the agency
developed the PAT. The Chief averred that the agency looked to the most
critical and physical tasks. The agency also conducted a job analysis to
link different abilities to the tasks required. Based on the analysis,
the agency developed the five components for the PAT. Upon review of
the record, the Commission finds that the agency has shown that the PAT
exam is job-related to complainant's medical officer position within an
institution and consistent with business necessity. Therefore, we find
that complainant is not qualified for the position at hand. Accordingly,
we conclude that complainant failed to establish that the agency violated
the Rehabilitation Act as alleged in claims (2) and (3).<2>
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD.
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
September 29, 2003
__________________
Date
1 The record indicates that only temporary
waivers are granted for the PAT. A temporary waiver is granted to
employees until they are able to attend the training and complete the PAT.
These waivers have been given in situations such as employees who are
injured during the PAT or who are pregnant.
2We acknowledge that complainant states that the cooler was effective.
However, the agency should have provided greater assistance to complainant
so that he did not shoulder the burden of keeping the cooler filled with
ice on a rigid schedule that could have interfered with his training
or required him to risk letting his insulin spoil. For example,
the agency could have determined if the hotel had guest rooms with
small refrigerators or experience in helping guests who needed to keep
medication refrigerated. Alternatively, the agency could have provided
dry ice which lasts longer.