Stella B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Jan 12, 2017

0120140960 (E.E.O.C. Jan. 12, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stella B.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120140960

Hearing No. 451-2013-00120X

Agency No. HS-CBP-22150-2012

DECISION

On December 30, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s December 12, 2013, final order concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Customs and Border Protection Officer at the Port of Entry in El
Paso, Texas. At the time of the events in question, she had been in a light duty status for
approximately five years. On July 2, 2012, Complainant filed an EEO complaint in which she
alleged that the Port Director discriminated against her on the bases of sex (female), age (59),
and in reprisal for prior protected EEO activity by requiring her to complete a fitness-for-duty
examination (FFDE) on February 23, 2012.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In a letter addressed to Complainant dated February 3, 2012, the Port Director informed her
that he was instructing her to report for a mandatory FFDE to determine her capacity to
perform her duties of her position as a Customs and Border Protection Officer. In the letter,
the Port Director noted that Complainant had been unable to perform the full range of duties
inherent in the position since April 12, 2007, and had undergone a prior FFDE in September
2008. Investigative Report (IR) 118-119. The Port Director averred in his investigative
affidavit that Complainant’s physical health had come into question on a number of occasions
and that there were conflicting medical opinions between Complainant’s health care providers
and the independent medical examiners utilized by the Agency to conduct health examinations.
He emphasized that the reason he wanted Complainant to undergo the FFDE was to resolve
those conflicts. IR 91-92. Complainant underwent the examination as scheduled, and was
cleared to return to full duty status by October 2012. IR 92, 96, 101-13, 115.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing.

The AJ assigned to the case determined sua sponte that the complaint was appropriate for
summary judgment and issued a decision on October 29, 2013, without holding a hearing. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

Fitness for Duty Examination

To the extent that Complainant’s February 23, 2012 FFDE is a disability-related inquiry,
requiring Complainant to submit to a FFDE could potentially constitute a per se violation of
the Rehabilitation Act of 1973, regardless of whether Complainant identified disability as a
basis of discrimination in her July 2012 complaint. See Complainant v. Department of
Energy, EEOC Appeal No. 0120131126 (December 19, 2013) (the restriction on disability-
related inquiries applies to all employees, not just those who establish that they are qualified
individuals with disabilities). Under the Rehabilitation Act, such inquiries are prohibited
unless the Agency can show that it had a reasonable belief based on objective evidence that an
employee will be unable to perform the essential functions of her job or pose a direct threat
because of a medical condition. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.13; Merrill
O. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142823 (Feb. 17, 2016).

Because the issue was never addressed by the AJ or by the Agency in its final order, we will
review the matter de novo. Both the February 3, 2012 letter from the Port Director to
Complainant, as well as the Port Director’s affidavit, indicate that Complainant had been
unable to fully perform the essential functions of her Customs and Border Protection Officer
position since April 2007. The evidentiary record also disclosed that Complainant had
undergone an FFDE on at least one occasion prior to the February 23, 2012 FFDE. After the
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results of the 2012 examination were evaluated and Complainant was certified as being able to
return to full duty, she did so in October of that year. We find that the sole reason for the
FFDE was to reach a definitive determination as to whether Complainant was able to perform
the essential functions of her position as a Customs and Border Protection Officer.
Consequently, we conclude that the FFDE administered to Complainant on February 23, 2012,
was job-related, consistent with business necessity, and lawful under the Rehabilitation Act.

Disparate Treatment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on her disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of fact as to whether the Port
Director was motivated by unlawful considerations of her gender, age, or previous EEO
activity in connection with the decision to require her to undergo a FFDE. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reason articulated by the Port
Director for requiring her to submit to the FFDE was a pretext, i.e., not the real reason but
rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515
(1993). Pretext can be demonstrated by showing such weaknesses, inconsistencies, or
contradictions in the Port Director’s proffered legitimate reasons for its action that a reasonable
fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal
Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied,
EEOC Request No. 0520080211 (May 30, 2008).

As we previously noted, the Agency presented the February 3, 2012 letter and the affidavit of
the Port Director in support of its position that the Agency had concerns about the extent to
which Complainant was able to perform the full range of duties associated with her job as a
Customs and Border Protection Officer. When asked what she believed the reason was for
requiring her to undergo the FFDE, Complainant responded that the Port Director, along with
and perhaps at the behest of other management officials, was trying to terminate her. IR 67.
She herself acknowledged, however, in a deposition dated June 7, 2013, that after she had
undergone the FFDE, she was shown to be fit for duty and was returned to full duty status.
Complainant’s Deposition, p. 96.

When asked what reasons the Agency provided her for requiring her to take the FFDE,
Complainant averred that she was not given specific reasons. IR 67. To the contrary, we find
that the Port Director made the reason for the FFDE very clear, both in his February 3, 2012
letter to Complainant and in his affidavit. The reason he gave was that a further medical
assessment was needed in order to determine whether or not Complainant could perform her
full range of duties as a Customs and Border Protection Officer. Complainant admitted,
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however, that she was placed on cashier duties and other light duty assignments for five years
prior to undergoing the FFDE. IR 67.

Finally, when asked why she believed her gender and age were factors in the Port Director’s
decision to refer her for a FFDE, Complainant averred that she was referred to in the
documentation as a “59-year-old female.” When asked why she thought she had been
retaliated against, she stated that one of the doctors evaluating her in October 2008 (the
previous FFDE) was made aware of her EEO complaints by someone within the Agency. IR
72; Complainant’s Deposition, pp. 71-75, 95-96, 114. Beyond these bare assertions, however,
Complainant has not presented any sworn statements from other witnesses or documents which
undermine or contradict the Port Director’s stated reason for ordering the FFDE, or which call
the Port Director’s veracity into question. We therefore agree with the AJ’s conclusion that
Complainant has not presented evidence sufficient to raise a genuine issue of material fact,
regarding the motive of the Port Director in requiring Complainant to undergo a FFDE on
February 23, 2012.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision without a hearing finding that
Complainant had not been discriminated against.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
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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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 12, 2017
Date