Giraldo Fernandez-Guerra, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 3, 2005
01a45206 (E.E.O.C. Mar. 3, 2005)

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.