01A11160
06-11-2002
John Garrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
John Garrison v. United States Postal Service
01A11160
June 11, 2002
.
John Garrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A11160
Agency No. 4F-950-0077-99
Hearing No. 370-A0-X2092
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.<1> 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 Mail Processor at the agency's
Fresno Post Office facility, filed a formal EEO complaint on May 6, 1999,
alleging that the agency had discriminated against him on the basis of
disability (Hodgkin's Disease) when he was not hired for the position of
Mail Processor in September 1998. Complainant applied for the position on
August 27, 1998. Complainant was given the application package and sent
for a drug screening. On September 4, 1998, complainant was notified that
he passed his drug screening and that he should schedule an interview.
Complainant was interviewed on September 9, 1998, and informed by the
interviewer that he would be hired as soon as the agency could complete
his medical exam, provided complainant passed the exam.
Complainant went for his medical exam on September 15, 1998. During the
exam, a medical staffer claimed complainant tested positive for diabetes,
and recorded those results, despite complainant's claim that he had no
history of diabetes. The following day, complainant sought a second
opinion from his private physician, who confirmed that complainant did
not have diabetes. Complainant called the medical unit responsible
for his exam to report his doctor's opinion, but was informed that the
results had already been sent back to the agency.
Two weeks later, complainant received a letter from the agency's medical
unit (MU) asking for a written report from complainant's physician
regarding the issue of diabetes. Complainant obtained a letter from his
physician indicating that he did not have diabetes and sent it to the MU.
On October 22, 1998, complainant called the MU to verify receipt of
the letter from his physician, and was told that the letter was never
received. Complainant then faxed over a copy of the letter that day.
On October 31, 1998, the MU sent another letter to complainant asking
for additional information concerning his diabetes and other physical
restrictions, including restrictions imposed by his Hodgkin's Disease.
Complainant alleged that these questions had been asked at his first
medical exam. Nonetheless, he complied with the request for more
information. Finally, on December 4, 1998, complainant was informed that
he had been medically cleared for the position, but that he would not
be hired because a hiring freeze went into effect on November 5, 1998.
Complainant subsequently filed the above-referenced complainant.
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 AJ concluded that complainant could not rebut the non-discriminatory
reason proffered by the agency for its failure to hire complainant.
Further, the AJ found that complainant failed to establish that more
likely than not the agency's actions were motivated by a discriminatory
animus. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she granted
summary judgment, as material issues remain in dispute. Specifically,
complainant argues that he did not receive a conditional job offer,
thereby making the medical exam a violation of his rights under the
Rehabilitation Act. Further, complainant argues that, but for his
Hodgkin's Disease, the delays that resulted in him being pushed outside
of the hiring window would not have occurred. In essence, complainant
is arguing that it is the pattern and practice of the agency to employ
stalling tactics whenever it perceives an applicant as being disabled.
The agency is silent on appeal.
ANALYSIS
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected class. Assuming, arguendo, that complainant is
an individual with a disability, complainant nonetheless failed to adduce
any evidence that would support his contention that the agency engaged
in a practice of intentional delay. There is no evidence in the record
that the delays were due to any reasons other than those offered by the
agency. Specifically, the agency stated that complainant's letter from
his doctor was never received, necessitating a new letter be sent. As to
the follow-up letter sent to complainant asking for more information,
the AJ found that this letter was routine.
Further, we find that complainant was made a conditional job offer,
as evidenced by the statements of the interviewer and complainant's
referral to the MU for an exam. See, e.g., Brady v. United States Postal
Service, EEOC Appeal No. 01A10212 (March 19, 2002); Dopun v. United
States Postal Service, EEOC Appeal No. 01992295 (February 13, 2002).
Moreover, an agency is permitted, under federal regulation, to a limited
medical inquiry during the pre-employment stage. 29 C.F.R. � 1630.14;
see also, Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act (ADA),
EEOC Notice No. 915.002 (July 27, 2000); see also, EEOC Enforcement
Guidance: Preemployment Disability - Related Questions and Medical
Examinations, EEOC Notice No. 915.002 (October 10, 1995). Further, an
agency may follow-up, as the agency herein did, as to issues that arise
during the medical examination. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.14(b).
Accordingly, after careful consideration of the record and complainant's
contentions on appeal, the final action of the agency is hereby affirmed.
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
June 11, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.