01A00055
06-03-2003
Isaac Delgado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Isaac Delgado v. United States Postal Service
01A00055
June 3, 2003
.
Isaac Delgado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00055
Agency No. 4A-0006-1057-96
Hearing No. 160-98-8005X
DECISION
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 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 Parcel Post Carrier, PS-5 at the
agency's Mayaguez, Puerto Rico Post Office facility, filed a formal EEO
complaint on August 8, 1996, alleging that the agency had discriminated
against him on the basis of disability (recurrent severe depression)
when he was issued a Notice of Removal effective May 6, 1996.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). At the hearing, the parties focused on one charge of the
removal notice, failure to submit proper medical documentation, which
resulted in complainant not being returned to duty.
Following a hearing, the AJ issued a decision finding discrimination.
The AJ concluded that the agency had discriminated against complainant
on the basis of his disability by failing to coordinate with the Agency
Medical Officer to obtain information needed to determine whether
complainant posed a �direct threat.�
The agency, as was its prerogative under the regulations then in effect,
rejected the AJ's finding and issued a final agency decision finding
no discrimination. This appeal followed.
On appeal, complainant essentially argues that if the agency believed
him to pose a �direct threat,� it was the agency's obligation to obtain
evidence to support such a finding. In response, the agency argues
that the AJ erred by analyzing complainant's claim as one of failure to
provide reasonable accommodation. The agency further argues that the
AJ erred in finding that the agency did not make adequate efforts to
secure information regarding complainant's ability to return to duty;
in shifting the burden to the agency to prove that the stated motive
for its actions was not discriminatory; and in substituting her business
judgment for the agency's.
The salient facts of the case are as follows: From October 9, 1995 until
November 10, 1995, complainant was hospitalized for alcohol dependency
and depression. On November 9, 1995, complainant advised the agency that
he would be available for work commencing November 13, 1995, and requested
the agency to schedule any medical evaluation as soon as possible.
The agency scheduled complainant for evaluation by its Medical Officer on
November 20, 1995. Complainant provided the Medical Officer with a note
from his psychiatrist which stated that complainant had been �completely
hospitalized,� i.e., in-patient, for psychiatric treatment from October 9
to 17, 1995, and �partially hospitalized,� i.e., out-patient, thereafter
until November 10, 1995. The note did not contain a diagnosis or any
other information bearing on complainant's condition. The Medical
Officer in turn gave complainant a note for his psychiatrist requesting
certification as to whether complainant was either suicidal or homicidal.
Complainant testified that the Medical Officer advised him that he would
not return complainant to duty until a psychiatrist determined whether
complainant was �whacko.�<1>
Complainant obtained a statement from his psychiatrist which again
stated that he had been hospitalized for psychiatric treatment from
October 9 to 17 (in-patient) and October 25 to November 10 (out-patient);
diagnosed complainant with alcohol dependency and general depression;
confirmed that complainant was neither suicidal nor homicidal;
and stated that complainant could return to duty. In the interim,
the agency sent complainant two Letters of Availability for Duty,<2>
advising complainant that he must submit medical certification of his
prognosis as to when he might return to duty.
Complainant testified that on or about December 11, 1995, he mailed the
requested medical certification from his psychiatrist to the Postmaster.
The Postmaster testified that he did not recollect ever receiving this
document. The record contains a copy of the November 28, 1995 certificate
from complainant's psychiatrist replying to the Medical Officer's inquiry,
but no indication of when or to whom at the agency it was sent.
By letter dated April 3, 1996, the Postmaster advised complainant that
he would be removed effective May 6, 1996. Complainant's removal was
effected, but later was overturned by arbitration. It is noted that the
Notice of Removal contained four charges: absence without leave (AWOL),
failure to follow proper absence reporting procedures, failure to follow
official instructions, and failure to submit proper medical documentation.
During the proceedings below, however, the focus of complainant's
EEO claim became the fourth charge, which pertained to the Medical
Officer's request for a certificate from complainant's psychiatrist.
Although complainant's removal was overturned, this charge resulted in
the imposition of a suspension without back pay.
The AJ took notice of the Arbitrator's findings, in relevant part, that
there was no evidence that complainant's letter to the Postmaster in fact
included the certificate from his psychiatrist; that neither complainant
nor his psychiatrist forwarded the certificate to the Medical Officer,
who had requested it; and that there was no explanation for complainant's
failure to contact the Medical Officer when he was not returned to work.
The AJ characterized the situation before her as one in which the agency
sought to establish that complainant presented a �direct threat� of harm.
The AJ went on to find that the agency had not met its obligations
under the Rehabilitation Act because, inter alia, when he did not
receive the medical certificate he requested complainant to provide,
the Medical Officer did not attempt to personally contact complainant's
psychiatrist; nor did the agency schedule complainant for examination
by a contract psychiatrist.
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.
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) he is an
�individual with a disability�; (2) he is �qualified� for the position
held or desired, i.e. can perform the essential functions with or without
accommodation; and (3) he was subjected to an adverse employment action
because of his disability. See Swanks v. WMATA, 179 F.3d 929, 934
(D.C.Cir. 1999); Heyman v. Queens Village Committee for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999).
For purposes of this analysis, the Commission's assumes, without
deciding, that complainant has established that he is an individual with
a disability.
The agency's established procedures provide that an employee returning
to duty after an absence of more than 21 days on account of illness
or serious injury must submit medical evidence of his or her ability
to return to work, with or without limitations. USPS Handbook EL-311,
� 342.1 (April 1990). The psychiatrist's statement which complainant
provided to the Medical Officer at the time of his evaluation contained
only confirmation of the dates of complainant's hospitalization.
The agency properly requested complainant to provide further information
from his psychiatrist, the medical professional in the best position
to assess complainant's condition.<3> See Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (July 27, 2000) (Guidance),
at Question 17 (employer has right to request reasonable documentation
establishing employee is capable of returning to work). When complainant
thereafter failed without explanation to provide the requested information
to the Medical Officer, the agency had no further obligation to inquire.
In determining the nature of the agency's obligation, the AJ cited
Section 3.7 of the Commission's Technical Assistance Manual: Disability
Discrimination (January 1999 ed.<4>). Section 3.7 addresses �How Does
an Employer Determine What Is a Reasonable Accommodation.� There is
no language in this section which supports the AJ's conclusion that
when complainant failed to provide the requested information the Medical
Officer was obliged to personally contact complainant's psychiatrist, nor
that at this point in the proceedings, the agency was obligated to refer
complainant to a contract psychiatrist for examination. Neither does
Section 4.5, �Standards Necessary for Health and Safety: A �Direct
Threat',� provide such support. Further, the agency's request was
predicated on complainant's failure to provide adequate information from
which to determine his ability to return to work. The AJ's conclusion
that the agency failed in its obligations under the Rehabilitation Act
therefore was in error.
Accordingly, based upon a review of the record, and for the foregoing
reasons, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's finding of no discrimination.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 3, 2003
__________________
Date
1The AJ made no finding as to whether the Medical Officer used the
word �whacko.�
2The Notice of Removal states that complainant was sent two Letters
of Availability for Duty, one issued November 14, 1995 and the other
issued November 27, 1995. The Postmaster testified that the letters
were returned to the agency for want of a good address.
3Although there is evidence in the record that complainant previously had
been suspended for threatening a supervisor, it is not clear whether the
Medical Officer was aware of that fact, or whether, as a consequence of
the suspension, the agency reasonably believed that complainant would
pose a direct threat on account of a medical condition. On appeal,
complainant did not contest the propriety of the agency's request.
The Commission, however, admonishes the agency that a request for
certification that an employee is neither homicidal nor suicidal based
solely on the fact that the employee had received psychiatric treatment
would violate the Rehabilitation Act. See generally Guidance, supra.
4The Technical Manual has since been revised effective January 2001.