0520110460
06-13-2013
Nestor C. Domingo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Nestor C. Domingo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520110460
Appeal No. 0120092031
Hearing No. 550-2008-00074X
Agency No. 4F-945-0179-07
DENIAL
Complainant timely requested reconsideration of the decision in Nestor C. Domingo v. U.S. Postal Service, EEOC Appeal No. 0120092031 (April 4, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Filipino), color (Brown), disability, age (59), and reprisal for prior protected EEO activity when: (1) on June 1, 2007, it issued him a Notice of Separation charging him with failing to report for a fitness-for-duty examination (FFDE) and being found unfit for duty; (2) on August 9, 2007, it required him to submit to a FFDE; and (3) during the August 9, 2007 FFDE, it denied him an interpreter.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's decision without a hearing finding no discrimination. Specifically, the appellate decision found that the Agency's decision to require Complainant to submit to a FFDE was based on a reasonable belief, based on objective evidence, that his ability to perform his essential job functions was impaired by a medical condition or that he posed a direct threat. In addition, the appellate decision found that the proposed separation was the direct result of Complainant's refusal to attend the FFDE. Further, the appellate decision found that Complainant did not legitimately need an interpreter and that, when the Agency agreed to provide one, he still refused to attend the FFDE. Finally, the appellate decision found that there was no evidence, beyond Complainant's speculation, from which a reasonable fact finder could conclude that the Agency's actions were unlawfully motivated by Complainant's race, national origin, color, disability, age, or prior protected EEO activity.
In his request for reconsideration, Complainant argued that the appellate decision erred in not consolidating the instant complaint with the complaint in Nestor C. Domingo v. U.S. Postal Service, EEOC Appeal No. 0120092231 (April 4, 2011). In addition, Complainant argued that the appellate decision erred in finding no discrimination in the instant complaint. Regarding the FFDE, Complainant asserted that the Agency, in requiring him to submit to one, relied heavily on allegations in a coworker's April 2007 letter which were "unreliable, untrue, and unproven," and which involved events that supposedly occurred years previously. Regarding the interpreter, Complainant asserted that he did not have to persuade anyone that he required an interpreter, but instead that the Agency was required to show that its English-only rule was justified by business necessity.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Regarding the non-consolidation of Complainant's complaints, we emphasize that the Commission's regulations permit, but do not require, the consolidation of two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. � 1614.606. Although the appellate decision could have consolidated Complainant's complaints, we find that its decision not to do so does not constitute clear error.
Regarding the August 9, 2007 FFDE, we find that Complainant has not shown that the appellate decision clearly erred in determining that it was job-related and consistent with business necessity. The record reflects that the Agency required Complainant to submit to an August 9, 2007 FFDE with a psychiatrist based on the results of a May 3, 2007 FFDE conducted by the Agency's Associate Area Medical Director (AAMD). Report of Investigation (ROI), at 300-04. In a May 4, 2007 letter referring Complainant for the August 9, 2007 FFDE, AAMD indicated that: (a) based on Complainant's statements during the May 3, 2007 FFDE, Complainant clearly believes he is hearing the voices of his coworkers, management, and neighbors discussing his work and his private life; (b) Complainant's "delusions are a cause for concern, as it is becoming progressive, and he has no insight and has poor judgment;" and (c) he found Complainant not fit for duty pending further evaluation. Id. at 302. Although Complainant may believe that the August 9, 2007 FFDE was unwarranted, the record reflects that management sent him for the FFDE based on an objective assessment by a physician (AAMD). To the extent that Complainant argued that the May 3, 2007 FFDE was discriminatory, we note that the May 3, 2007 FFDE was the subject of a previous complaint which was dismissed for the untimely filing of the formal complaint. See Domingo v. U.S. Postal Serv., EEOC Appeal No. 0120073677 (Oct. 29, 2007).
Regarding the denial of an interpreter during the August 9, 2007 FFDE, we find that Complainant has not shown that the appellate decision clearly erred in finding no discrimination. Although Complainant argued that the appellate decision failed to apply the proper analysis with respect to English-only rules, we find that such an analysis is irrelevant to the instant complaint. English-only rules are "workplace policies restricting communication in languages other than English." See EEOC Compliance Manual Section 13, "National Origin Discrimination," No. 915.003, at 13-V.C (Dec. 2, 2002). Here, the challenged action is the Agency's decision to deny Complainant an interpreter during the August 9, 2007 FFDE, not the Agency's adoption of an English-only rule.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120092031 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
___6/13/13_______________
Date
2
0520110460
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110460