0120091544
03-13-2013
Steve Fazekas-Spencer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Steve Fazekas-Spencer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120091544
Agency No. HS-08TSA-003437
DECISION
On February 26, 2009, Complainant filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
Whether an Agency violates the Rehabilitation Act if it requires a job applicant, who has received a conditional offer, to take a follow-up medical examination at his own expense, after the Agency has paid for an initial medical examination administered to all individuals who were given conditional job offers for the same position?
BACKGROUND
Complainant applied for and received a conditional offer for the position of Transportation Security Officer (Screener) at the Grand Forks Mark Andrew International Airport at Grand Forks, North Dakota. He filled out a medical questionnaire, indicating that he had been diagnosed or treated for depression. Complainant underwent an initial medical evaluation, which was paid for by the Agency.
In a November 8, 2007 notice, the Agency's medical vendor informed Complainant that it had placed him on medical hold because it needed additional medical information to complete its assessment of his depression. In particular, the notice required Complainant to be evaluated by a mental health care specialist and provide a current "Global Assessment of Functioning," a numeric scale used by mental health clinicians and physicians to subjectively rate an individual's psychological, social, and occupational functioning. The notice specified that Complainant had to submit the requested documentation within 90 days, or else the Agency would not consider Complainant's job application any further. The notice also provided that Complainant would incur any expenses.
According to an Agency official, Complainant informed the Agency that he could not afford to see a mental health care specialist and undergo a "Global Assessment of Functioning," and offered instead to permit the Agency to contact his doctor and obtain whatever information the Agency needed to complete its assessment. The Agency declined to do so because this was not the Agency's procedure.
After the 90-day period passed, the Agency informed Complainant on February 20, 2008 that he did not pass the assessment process.
On April 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (depression) when:
1. in November 2007, he was informed that he would have to undergo a second medical examination at his own expense, which placed his application on medical hold, and led to his non-selection for the position of Transportation Security Officer.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Although Complainant requested a hearing, he subsequently withdrew his request. The Agency issued a final decision, concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency violated the Rehabilitation Act because it ordered him to undertake a specific, follow-up medical examination at his own expense after he received a conditional job offer.
ANALYSIS AND FINDINGS
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Medical Examinations
The Rehabilitation Act1 limits the ability of federal agencies to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. These restrictions apply to all individuals, not just those with disabilities. Therefore, any individual has a right to challenge a disability-related inquiry or medical examination.2
Here, Complainant challenges a medical examination at the post-offer stage. A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health (for example, those listed in the American Psychiatric Association's most recent Diagnostic and Statistical Manual of Mental Disorders). ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice No. 915.002 (Oct. 10, 1995).
Psychological examinations are "medical examinations" if they provide evidence that would lead to identifying a mental disorder or impairment. Id. For example, an examination that reflects whether the individual has excessive anxiety, depression, and certain compulsive disorders would constitute a "medical examination." See id.
Here, the Agency tried to determine the extent of Complainant's depression by requiring a health care professional to administer and interpret the "Global Assessment of Functioning." We find that this psychological examination constitutes a "medical examination," governed by the Rehabilitation Act.
Agency's Obligation to Pay for a Medical Examination of the Agency's Choice
An agency's obligation to pay for a medical examination of the agency's choice is an issue of first impression at the post-offer stage. The regulation that governs such inquiries, 29 C.F.R. � 1630.14(b), along with our enforcement guidance interpreting this provision, are silent on the issue.
29 C.F.R. � 1630.14(b) provides the permissible ways in which an agency can ask disability-related inquiries and give medical examinations, to obtain basic medical information from all individuals who have been given conditional offers in a job category. See id.; ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice No. 915.002 (Oct. 10, 1995).
After an agency has obtained basic medical information from all post-offer applicants, the agency may then ask specific individuals for more medical information. ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice No. 915.002 (Oct. 10, 1995). At this stage, the agency may ask follow-up questions or give follow-up medical examinations, as long as they are medically related to the previously obtained medical information. Id.
It is clear that an agency may "give" a follow-up medical examination to an applicant at the post-offer stage, that is, an agency can require an applicant to undergo a follow-up medical examination of the agency's choice, administered by a health care professional of the agency's choice. What the Commission's 1995 enforcement guidance does not elaborate on is whether the agency must pay all costs associated with such a mandatory visit.
For guidance, we look to other situations in which agencies may seek medical information under the Rehabilitation Act, and the circumstances in which they can require complainants to undergo specific medical visits to obtain that medical information.
One such situation is when an agency seeks medical information after an employee has requested a reasonable accommodation. To make an informed decision about the request, an agency is entitled to seek information about an employee's covered disability and need for a reasonable accommodation. An agency has several ways to obtain this information:
* Discuss with the employee the nature of the disability and functional limitations.
* Consult with the employee's doctor, after obtaining the employee's consent.
* Ask the employee for reasonable documentation about the disability or functional limitations.
* Get technical assistance from the Commission, State or local rehabilitation agencies, or from disability constituent organizations.
* Require an employee to go to a health professional of the agency's choice.3
While the Rehabilitation Act does not prevent an agency from requiring an individual to go to an appropriate health professional of the agency's choice, we have advised that an agency should first consider other options, such as consulting with the employee's doctor (with the employee's consent). If an agency ultimately elects to require an employee to go to a health care professional of the agency's choice, the agency must pay all costs associated with the visit.4
An agency that fails to pay the costs associated with such an agency-mandated medical visit will violate the Rehabilitation Act. For example, in Purl v. U.S. Postal Serv., EEOC Appeal No. 01971894 (Sept. 11, 2000), the Commission found that the agency violated the Rehabilitation Act when it required an employee to take the agency's fitness-for-duty examination at his own expense.
This flexible information-seeking process encourages the parties to work together, while recognizing that sometimes an agency may need to initiate a more defined problem-solving process. And when the agency chooses to require a specific medical examination to be taken, thereby completely controlling the means for acquiring medical information and foreclosing all alternative modes of inquiry, the agency must pay the cost.
This process is consistent with the intent of Congress, an intent that is shared with the provisions governing post-offer disability-related inquiries and medical examinations: protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.5
Because of this shared purpose, we find it appropriate and consistent under the Rehabilitation Act to require an agency to pay for the costs of a post-offer medical examination of the agency's choice, just as an agency is required to pay for the costs of a medical examination of the agency's choice with respect to its employees.
Here, the Agency chose to foreclose all alternative legitimate avenues for Complainant to provide medical information on his depression. It rejected Complainant's offer to consult with his doctor about his mental condition. Instead, the Agency required Complainant to pay for a specific medical examination, one that he apparently could not afford. Therefore, we find that the Agency violated the Rehabilitation Act when it required Complainant, a post-offer job applicant, to take an Agency-mandated medical examination at his own expense.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision, which found there was no violation of the Rehabilitation Act. We REMAND the matter back to the Agency for a determination on damages. The Agency must take corrective action, in accordance with this decision and the Order below.
ORDER
1. Within ninety (90) calendar days of the date this decision becomes final, the Agency shall make a written conditional job offer to Complainant for the position of Transportation Security Officer (Screener) at the Grand Forks Mark Andrew International Airport at Grand Forks, North Dakota.
The Agency shall give Complainant a minimum of thirty (30) days from the date of receipt of the offer to accept or decline the offer. If Complainant fails to accept the offer within the time period set by the Agency, Complainant's inaction will be considered a rejection of the offer, unless he can show that he was prevented from responding within the time limit due to circumstances beyond his control.
If Complainant timely accepts the conditional job offer, the Agency shall resume the assessment process from the time it placed his conditional offer on medical hold, pending the result of the "Global Assessment of Functioning." The Agency may still require him to be evaluated by a mental health care specialist and provide a current "Global Assessment of Functioning." But the Agency shall pay all the costs associated with Complainant taking the "Global Assessment of Functioning."
2. If Complainant successfully completes the assessment process and becomes a Transportation Security Officer (Screener) at the Grand Forks Mark Andrew International Airport at Grand Forks, North Dakota, the Agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due Complainant, retroactive to February 20, 2008, the date the job offer was rescinded, pursuant to 29 C.F.R. � 1614.501. This will take place no later than ninety (90) calendar days after the date Complainant begins working as a Transportation Security Officer. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with a detailed statement clarifying how Complainant's back pay award was reached. The statement shall consist of a clear and concise, "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods.
If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within thirty (30) days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages under the Rehabilitation Act.6 The Agency shall give Complainant notice of her right to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at http://www.eeoc.gov/policy/docs/damages.html), and Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The Agency shall complete the investigation and issue a final decision addressing the issue of compensatory damages within 150 calendar days after this decision becomes final. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision."
4. The Agency shall revise its post-offer procedures for medically assessing job applicants. Specifically, the Agency's procedures shall indicate that if the Agency requires an applicant at the post offer stage to undergo a specific follow-up medical examination, the Agency must pay all costs associated with the visit.
5. The Agency shall provide training to all management officials responsible for the post offer medical assessment process in their duties and obligations under the Rehabilitation Act's provisions on disability-related inquiries and medical examinations.
6. Within ninety (90) calendar days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report is decision to the EEOC compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall provide documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation, verifying that the Agency has implemented the above corrective actions.
POSTING ORDER (G0610)
The Agency is ordered to post at the Grand Forks Mark Andrew International Airport at Grand Forks, North Dakota, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
___3/13/13_______________
Date
1 Title I of the Americans with Disabilities Act of 1990 (ADA) limits an employer's ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. According to the Rehabilitation Act Amendment of 1992, the ADA's employment standards apply to all nonaffirmative action employment discrimination claims of individuals with disabilities who are federal employees or applicants for federal employment. Pub. L. No. 102-569 �503(b), 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. �791(g)(1994)).
2 See, e.g., Courtney v. U.S. Postal Serv., EEOC Request No. 01981316 (Feb. 5, 2004) (noting that all employees and applicants for employment, regardless of their disability status, are protected under the Rehabilitation Act against unlawful medical inquiries or examinations); EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002 (July 27, 2000) ("[T]he ADA's restrictions on inquiries and examinations apply to all employees, not just those with disabilities. . . . Any employee, therefore, has a right to challenge a disability-related inquiry or medical examination . . . .").
3 See 29 C.F.R. pt. 1630 app. � 1630.9.
4 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 7 (Oct. 17, 2002); EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002, Question 11 (July 27, 2000); EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915.002, Question 22 (March 25, 1997).
5 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002 (July 27, 2000).
6 The Commission notes that that this is not a case where the Agency made a "good faith effort" to reasonably accommodate Complainant, thereby insulating it from an obligation to award appropriate compensatory damages based on a finding of discrimination under the Rehabilitation Act. See Teshima v. U.S. Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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