01a45206
03-03-2005
Giraldo Fernandez-Guerra, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Giraldo Fernandez-Guerra v. United States Postal Service
01A45206
03-03-05
.
Giraldo Fernandez-Guerra,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45206
Agency No. 1H-332-0011-03
Hearing No. 150-2004-00115X
DECISION
INTRODUCTION
Complainant timely initiated an 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, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
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.
ISSUES PRESENTED
The issues presented herein are (1) whether summary judgment was properly
granted in this case; and (2) whether complainant has established that
the agency discriminated against him on the bases of race (Caucasian),
national origin (Cuban), disability (not specified), age (58) and in
reprisal for engaging in prior EEO activity when he was sent for a fitness
for duty examination and required to provide periodic medical updates.<1>
BACKGROUND
The record indicates that complainant is a Mail Handler at the agency's
Fort Lauderdale, Florida Post Office. On September 4, 2002, a co-worker
accused complainant of threatening to kill him. As a result, complainant
was ordered to undergo a fitness for duty examination, and placed in
a non-duty/non-pay status.<2> Although complainant was determined to
be fit for duty with no restrictions, he was ordered by the agency to
provide medical updates every sixty days to his manager.
Believing that he was a victim of discrimination, complainant filed
a formal EEO complaint with the agency on January 29, 2003. At the
conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision, without a hearing, finding no
discrimination. The agency adopted the AJ's decision. This appeal
followed.
ANALYSIS AND FINDINGS
Summary Judgment
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 does not
sit as a fact finder. Id. 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. A disputed 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 103,
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, summary judgment is not appropriate.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission finds that the AJ correctly determined that there were no
genuine issues of material fact and that summary judgment was appropriate.
Medical Examination
The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (Enforcement
Guidance - Disability Related Inquiries), No. 915.002 (July 26,
2000); Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance
on Preemployment Disability-Related Questions and Medical Examinations
(Enforcement Guidance - Preemployment) (October 10, 1995). Because the
restrictions on employers with regard to disability-related inquiries
and medical examinations apply to all employees, and not just to those
with disabilities, it is not necessary to inquire whether the employee
is a person with a disability. Enforcement Guidance - Disability Related
Inquiries, p. 3. Instead, we focus on the issue of whether the agency's
order that complainant undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
"job-related and consistent with business necessity" when an employer
"has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat due
to a medical condition."<3> Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23.
The record indicates that in 1996, complainant was issued a notice of
proposed removal for exposing himself to an agency employee. In 1999, he
was issued a 14-day suspension for physically assaulting a mail handler.
In May 2000, he was involved in an altercation with the Manager of
Distribution Operations, which resulted in another suspension. As noted
above, the current incident occurred on September 4, 2002. The AJ
found that the request for a fitness for duty examination was brought
about because of complainant's past history of violence and the �recent
threat to kill." In this regard, the AJ cited the statement of A-1,
the Plant Manager, that, "the concern was that complainant's continued
retention on duty may result in injury to himself or others, a decision
I concurred with." A-1 also said that to "[e]nsure the safety of all our
employees, I thought it necessary to ensure the complainant was of sound,
physical and mental condition." A-2, the Acting Manager of Distribution
Operations, was the management official who made the initial decision
to send complainant for the examination. She stated that she felt it
was in the best interests of all concerned. Finally, A-3, the Manager
of Distribution Operations, stated that the medical opinion that they
received, as a result of the examination, was that complainant needed to
continue with his treatment and his prescribed medications; therefore,
management required documentation from complainant indicating that he
was continuing with his treatment. Upon review of the record and the
AJ's findings of fact, we find that the agency met its burden of showing
that the decision to order complainant to undergo the examination was
job-related and consistent with business necessity. Accordingly, we
find that the agency did not violate the Rehabilitation Act.
Disparate Treatment
The AJ also found that, even assuming that complainant was able to
establish prima facie cases of discrimination based on race, national
origin, age, disability or in retaliation for engaging in EEO activity,
the agency provided a legitimate, non-discriminatory reason for ordering
that complainant undergo a fitness for duty examination and submit
periodic updates of his condition, i.e., his history of misconduct.
Complainant failed to present any persuasive evidence that the agency's
actions were motivated by discriminatory animus.<4> We discern no reason
to disturb the AJ's findings here.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
___03-03-05_______________
Date
1Complainant's complaint was initially defined as a claim that he was
discriminated against when he became aware that an inaccurate fitness
for duty report was provided to the agency. The Administrative Judge,
upon examination of record, found that the graveman of complainant's
claim was not to challenge the accuracy of the report, but the act of
being sent to take a fitness for duty examination. We agree. The AJ
also indicated that it was not within his authority to determine the
accuracy of the report. Complainant, we note, did not challenge the
Administrative Judge's determination in his statement on appeal.
2On appeal, the agency notes the fact that complainant filed a separate
EEO complaint concerning his suspension. According to the agency, this
was an attempt by complainant to "bifurcate a single claim into two
separate actions." Among other things, complainant, on appeal, argued
that these were two separate claims. The record indicates that the
agency issued a final decision on the suspension on February 18, 2004.
In EEOC Appeal No. 01A42791 (July 15, 2004), the Commission vacated
the FAD and remanded the case to the agency because it erred in denying
complainant a hearing. Complainant provided evidence that he mailed his
hearing request form to the EEOC in a timely manner. The agency was
ordered to submit a request for a hearing to the appropriate district
office of the EEOC. Neither party requested that we vacate the final
decision in this case in order to remand complainant's present claim
for consolidation with the matter of his suspension.
3"Direct threat" means a significant risk of substantial harm that
cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. �
1630.2(r).
4Like the AJ, we find that there is no evidence that the comparators
named by complainant had similar records of misconduct.