01A12137
08-23-2002
Steven F. Meeker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Steven F. Meeker v. United States Postal Service
01A12137
August 23, 2002
.
Steven F. Meeker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A12137
Agency Nos. 4-H-327-0268-99; 4-H-327-0067-00<1>
Hearing No. 150-99-8710X
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.,<2> and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission REVERSES the agency's final order and remands the complaint
for remedial action in accordance with the below order.
Complainant, a Personnel Associate at the agency's Central Florida
District facility, filed formal EEO complaints on August 20, 1999, and
February 29, 2000, alleging that the agency had discriminated against
him on the bases of a perceived but unidentified mental disability, age
(DOB 5/27/49), and reprisal for prior EEO activity when:
he was terminated on November 28, 1998;
on November 29, 1999, he received an unacceptable performance rating; and
on January 8, 2000, his life and health benefits were terminated.
The events precipitating complainant's terminations are as follows:
On February 20, 1998, complainant approached his supervisor (S1)
to inform her that he had received a threatening phone call at work.
Complainant told S1 that he usually receives such calls at home, but
because this one came in to the workplace he felt obliged to report it.
Although S1 questioned complainant about the calls and the caller,
complainant declined to provide any further information. In the course
of the conversation, according to S1, complainant rambled on, making
statements about what he knows, his belief that he is being watched at
all times, and his belief that his knowledge about certain individuals
put his life in danger. Based on these statements, S1 requested that
complainant submit to a fitness for duty examination.
S1 submitted this request to the agency's Associate Area Medical Director
(DR1). DR1 authorized the fitness for duty exam, and later explained that
complainant was �expressing a significant, really bizarre, paranoid type
feelings or related to life or death issues in the workplace . . . .�
Complainant cooperated and submitted to examination by two different
doctors (DR2, DR3), a psychiatrist and a psychologist. Both doctors
found complainant fit for duty; however, according to a letter from DR2,
(ROI-1 at 39)<3>, both DR2 and DR3 were concerned about complainant's
�feelings of persecution and his emotional lability.� The letter further
recommends that complainant be referred to a psychiatrist for further
treatment and that he be re-evaluated in one year.
The letter from DR2 was evaluated by DR1. DR1, in turn, advised
the agency that complainant was fit for duty and was not a threat
to himself or others, but was restricted in that he was required to
seek psychiatric services, at his own expense, and report his progress
with such counseling monthly. Complainant, although he made cursory
efforts to comply with this requirement, balked at being required to
seek professional counseling when he was declared fit for duty by DR1,
DR2 and DR3. Complainant further argued that he could not afford such
services and requested the agency to pay for them. The agency refused
to pay for the services, but nonetheless maintained to complainant that
he was required to attain them. As a result of his failure to comply
with this directive by the agency, complainant was placed in a non-duty
status on September 4, 1998. ROI-1 at 44. Effective September 21,
1998, complainant was placed on administrative leave for �failure to
provide updated medical documentation regarding your condition and
pending receipt of the same.� ROI-1 at 46. Effective November 28,
1998, complainant was removed from the agency's employ.
On November 29, 1999, complainant received an evaluation for Fiscal Year
(FY) 1999 rating him as unsatisfactory, although he was eligible to be
rated as �not rated� because he did not work during the rating period.
The evidence of record substantiates that complainant's employment
status during the entirety of FY99 was classified as �non-duty� as of
September 4, 1998. Even after complainant's termination, this status
was maintained, pending the outcome of complainant's EEO complaint.
Finally, on January 8, 2000, complainant received a letter from the agency
advising him that, because he had been in a leave without pay (LWOP)
status in excess of 365 days, his health and life insurance benefits were
being terminated 31 days from December 17, 1999. This termination was
done in accordance with the agency's policy under Employee Labor Manual
� 524.74D. ROI-2 at 44.
Believing he was the victim of discrimination, complainant filed
complaints as specified above. Item one above was the sole claim
in the first complaint. Items two and three comprised the second
complaint. These complaints were investigated, and at the conclusion
of the investigations, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge
(AJ) for each complaint. The complaints were consolidated for hearing,
after which the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability or age discrimination with regard to his termination.
In so doing, the AJ reasoned that because complainant was not performing
at a satisfactory level prior to his termination, i.e., not pursuing
psychiatric treatment as prescribed, he could not establish one of
the essential elements of a prima facie case of disparate treatment
termination. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found
that complainant was terminated for failure to follow instruction,
i.e., failure to seek psychiatric counseling. The AJ determined that
complainant did not establish that, more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Regarding retaliation, the AJ concluded that complainant established a
prima facie case of discrimination, but only regarding the unsatisfactory
rating. The AJ went on to find that complainant did not rebut the
agency's articulated reasons for its action. S1, the rating official,
stated that she chose to give complainant an �unsatisfactory� rating
because he had not worked all year. S1 further stated that this rating
had to be, and was, approved by her superiors, as further justification
for the rating.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
ANALYSIS
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.
Disability Discrimination
We turn first to complainant's claim of disability discrimination.
Ordinarily, as a threshold matter, complainant must establish that he
is a �qualified individual with a disability� within the meaning of
the Rehabilitation Act. Herein, however, we do not need to address
whether complainant is an individual with a disability. The AJ treated
the complainant's claim as one of disparate treatment discrimination
because complainant alleged that no one else who was otherwise declared
fit for duty, and therefore medically cleared to work, was nonetheless
required to submit to follow up examinations. Complainant's argument,
however, is more appropriately construed as an opposition to further
medical inquiries.<4> Complainant need not prove he is an individual
with a disability to take such opposition. 29 C.F.R. � 1630.14(c).
The Rehabilitation Act incorporates by reference the provisions of the
Americans With Disabilities Act (ADA) concerning medical inquiries and
examinations. The ADA imposes significant restrictions on an employer's
freedom to make medical inquiries of employees. The EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (Disability Guidance),
No. 915.002 (July 26, 2000) states:
A covered entity shall not require a medical examination and shall
not make inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature and severity of the
disability, unless such examination or inquiry is shown to be job-related
and consistent with business necessity.<5>
This statutory language makes clear that the ADA's restrictions on
inquiries and examinations apply to all employees, not just those with
disabilities. Unlike other provisions of the ADA which are limited to
qualified individuals with disabilities,<6> the use of the term �employee�
in this provision reflects Congress's intent to cover a broader class of
individuals and to prevent employers from asking questions and conducting
medical examinations that serve no legitimate purpose.<7> Requiring
an individual to show that s/he is a person with a disability in order
to challenge a disability-related inquiry or medical examination would
defeat this purpose. Any employee, therefore, has a right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity.
Disability Guidance at 5 (some footnotes omitted); see also Bruno
v. United States Postal Service, EEOC Appeal No 01996301 (January
16, 2002); and Watkins v. United States Postal Service, EEOC Appeal
No. 01981800 (August 29, 2001).
Thus, the agency must demonstrate that its initial and subsequent
requests for medical examinations were job-related and consistent
with business necessity. 29 C.F.R. � 1630.14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
�job-related and consistent with business necessity� when an employer
�has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat<8>
due to a medical condition.�<9> Disability Guidance at 15.
Herein, S1 stated that she requested that complainant submit to a fitness
for duty exam because he made random and vague comments about being
threatened, watched, and fearing for his life because of his knowledge
about some unnamed individuals. S1 further stated in her written account
of the incident, which she attached to her letter to DR1 seeking his
opinion concerning a fitness for duty exam for complainant, that during
the February 20 meeting complainant was crying and stated that a hit man
was after him. Agency Hearing Exhibit 4 (A-4). S1 further noted in her
request letter to DR1 that complainant had a history of being referred
to the employee assistance program, including once for comments that were
interpreted as suicidal. A-4. DR1 stated that he approved this request
because complainant was expressing bizarre and paranoid-type feelings,
which he felt related to �life and death issues in the work place.�
Based on this information, we conclude that S1 or DR1 had a �reasonable
belief� that complainant either could not perform the essential functions
of his job or was a direct threat to himself or others.
The examinations did not end with the fitness for duty exam, however.
After complainant was examined by both a psychiatrist and a psychologist,
he was declared fit for duty and not a threat to himself or others.
Nonetheless, DR1 imposed a restriction on complainant, requiring him
to seek psychiatric care for one year and report his progress monthly.
ROI-1 at 37; AJ Decision at 14. As stated above, complainant took issue
with having to submit to such exams as a condition of his employment, as
well as with having to pay for them himself, given that he was previously
declared fit for duty and not a threat to himself or others.
In ordering such subsequent exams, the agency is bound by the same
requirements used to evaluate the initial referral. 29 C.F.R. �
1630.14(c). Was the requirement job-related and consistent with business
necessity? Did the agency have a reasonable belief, based on objective
evidence, that: (1) complainant's ability to perform essential job
functions would be impaired by a medical condition; or (2) complainant
posed a direct threat due to a medical condition? Id.
We find that the agency did not have a reasonable belief that
complainant's ability to perform essential job functions would be impaired
by a medical condition or that he posed a direct threat due to a medical
condition. Complainant was determined to be fit for duty by both doctors
he was sent to by the agency. The record is void of any evidence that
would suggest complainant's ability to do his job was in question.
In fact, complainant received a monetary award for his performance
not long before the February 20, 1998, conversation with S1. See A-4.
Further, S1, when asked during the hearing if she thought complainant
was a threat to himself or others, responded that she was not fearful
of complainant and that if she had been fearful of him, he �would not
be at work.� Hearing Transcript (HT) at 240. It is the burden of the
employer to show that its disability-related inquiries and requests for
examinations are job-related and consistent with business necessity.
Disability Guidance at 15-23. Herein, the agency has failed to meet
this burden. We conclude that the agency did not demonstrate that the
subsequent medical examinations complainant was required to submit to
were job-related or consistent with business necessity. Therefore,
the agency has violated the Rehabilitation Act.
Further, an employer may not discipline an employee for failure to comply
with an improper request for medical information. Watkins v. United
States Postal Service, EEOC Appeal No. 01981800 (August 29, 2001). Here,
the agency imposed the most extreme discipline available to it: removal.
To remedy that wrongful removal, we will order complainant's immediate
reinstatement together with appropriate additional relief as set forth
more fully in the order below.
Reprisal
Although we have already found in favor of complainant, the remedy
ordered necessitates that we address this claim as well. The statutory
retaliation clauses prohibit any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter complainant or others
from engaging in protected activity. Petty slights and trivial annoyances
are not actionable, as they are not likely to deter protected activity.
More significant retaliatory treatment, however, can be challenged
regardless of the level of harm. Complainant can establish a prima facie
case of reprisal discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination. Shapiro
v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)
(citing McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973)).
Specifically in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 20, 1997), complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of his protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency; and
(4) a nexus exists between the protected activity and the adverse action.
Whitmire v. Department of the Air Force, EEOC No. 01A0034 (September 25,
2000) (citing EEOC Compliance Manual Section 8, �Retaliation,� No. 915.003
(May 20, 1998)).
With regard to the unacceptable performance rating,<10> complainant can
establish a prima facie case of retaliation. Regarding the first element,
complainant engaged in both types of protected activity�participation
and opposition. Complainant filed a complaint of discrimination and
voiced reasonable opposition to an employment practice he perceived to
be discriminatory by refusing to seek additional psychiatric care after
being declared fit for duty. S1 was aware of that protected activity.
S1 then rated complainant unsatisfactory for FY99, and given that the
complaints are related subject-matter wise, it is reasonable to find
that a nexus exists between the refusal to seek additional psychiatric
care and S1 rating complainant as unsatisfactory instead of �not-rated.�
The agency, however, cannot articulate a legitimate, non-discriminatory
reason for its actions. When asked on direct examination why she rated
complainant as unacceptable for FY99, S1 dodged the question and stated,
�[t]he reason I rated him as unacceptable was, the unacceptable required
further review and approval . . .� while not actually explaining her
motivation at all. HT at 206. When pressed on the issue and asked why
she did not rate complainant as �not-rated,� which rating he qualified
for because he did not work at all during FY99, S1 stated that either
rating was applicable and, �I even received approval from the southeast
area that we could rate him unacceptable.� Id. at 207. We find that the
agency has failed to rebut the presumption that discrimination occurred.
McDonnell Douglas, 411 U.S. at 802. Thus, we order that the rating for
FY99 be changed to �not-rated,� consistent with the order below.
ADEA Claim
Lastly, complainant alleges that the treatment in items one, two and
three above were also motivated by his age. There is no evidence in
the record to suggest that age played a role in the decision making of
agency officials. See Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that �but for� age, complainant would not have been subject to the adverse
action at issue). Thus, complainant's claim as to this basis must fail.
CONCLUSION
In conclusion, we find that the agency violated the Rehabilitation Act
when it required complainant to submit to additional medical examinations
after being declared fit for duty. We further find that the agency
retaliated against complainant when it rated him unsatisfactory for
a period when he was in a non-duty status pending the outcome of his
EEO complaint. Accordingly, the agency must provide complainant with
full, make-whole relief to restore him as nearly as possible to the
position he would have occupied absent the discrimination. See, e.g.,
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001). We note that
complainant has made a claim for compensatory damages. The Commission
recognizes that not all harms done are amenable to precise quantification;
the burden of limiting the remedy, however, rests with the employer.
Smallwood v. United Airlines, Inc., 728 F.2d 614, 616 n.5 (4th Cir.),
cert. denied, 469 U.S. 832 (1984). We direct the parties to the ORDER
below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date of this decision, the
agency shall retroactively restore complainant to the position he held
prior to his removal, and expunge all references to the removal from
his personnel records.<11> Complainant has ten (10) business days to
accept or reject the agency offer of reinstatement;
Within sixty (60) days of the date this decision becomes final, the
agency shall award to complainant any back pay (with interest) and/or
other benefits lost due to the agency's discriminatory actions from
September 4, 1998, until he is either re-employed by the agency or
rejects the agency's offer of re-employment;
Immediately remove the unsatisfactory rating for FY99 from complainant's
personnel file and re-rate complainant as �not-rated� for that period;
Within sixty (60) days of the date this decision becomes final,
the agency shall provide all managers who made decisions relevant to
either of these two complaints with a minimum of sixteen (16) hours
of EEO training, particularly on their responsibilities under the
Rehabilitation Act and the duty not to retaliate;
The agency shall post at its Central Florida District facility 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; and
The AJ shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory actions. See Teshima v. United
States Postal Service, EEOC Appeal No. 01961997 (May 5, 1998); Feris
v. Environmental Protection Agency, EEOC Appeal No. 011934828 (August
10, 1995), request to reopen denied, EEOC Request No. 05950936 (July 19,
1996); Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July
22, 1994); Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); see also Cobey Turner v. Department of the Interior,
EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998); Jackson
v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,
1992), request for reconsideration denied, EEOC Request No. 05930306
(February 1, 1993). The AJ shall afford complainant the opportunity
to submit additional evidence in support of his claim for compensatory
damages and attorney's fees, and thereafter issue a decision determining
complainant's entitlement to such, and the appropriate amounts, together
with appropriate appeal rights.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The 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.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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.�
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 of the
agency's calculation of back-pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
August 23, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found
that a violation of the Rehabilitation Act has occurred at the United
States Postal Service facility in the Central Florida District facility
(hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of
disability and reprisal, when the agency required him to submit to
medical examination without having a reason that was job-related or
consistent with business necessity, and took an adverse action against
him after he engaged in protected activity. The agency shall therefore
remedy the discrimination by reinstating this individual, applicable
back pay, proven compensatory damages, and providing agency management
officials with relevant EEO training. The facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
1 Complainant orally withdrew a third complaint, agency number
4-H-327-0207-99, at the hearing.
2 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.
3 ROI-1 refers to the record of investigation for agency case #
4-H-327-0268-99. ROI-2 refers to the record of investigation for agency
case # 4-H-327-0067-00.
4 We note that the AJ recognized this construction of the argument only
after complainant explicitly articulated it at the hearing stage. The AJ
dismissed the argument as untimely for complainant's failure to raise
it with the EEO counselor. This dismissal was in error, as complainant
clearly articulated to the EEO counselor that he felt the requirement
that he seek additional treatment was discriminatory. The chosen theory
of discrimination, or rather the legal construction of his argument,
is not relevant to the determination of whether a claim is timely.
5 42 U.S.C. � 12112(d)(4)(A)(1994); 29 C.F.R. �1630.14(c)(1998).
6 See e.g., 42 U.S.C. � 12112(a)(1994) (no entity shall discriminate
against a qualified individual with a disability because of the disability
of such individual).
7 Congress was particularly concerned about questions that allowed
employers to learn which employees have disabilities that are not
apparent from observation. It concluded that the only way to protect
employees with nonvisible disabilities is to prohibit employers from
making disability-related inquiries and requiring medical examinations
that are not job-related and consistent with business necessity.
See S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2,
at 75 (1990) (�An inquiry or medical examination that is not job-related
serves no legitimate employer purpose, but simply serves to stigmatize
the person with a disability.� A person with cancer �may object merely
to being identified, independent of the consequences [since] being
identified as [a person with a disability] often carries both blatant
and subtle stigma�).
8"Direct threat� means a significant risk of substantial harm to the
employee or others in the workplace, that cannot be eliminated or
reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r)(1998); see
also Chevron U.S.A., Inc. v. Echazabal, ___ U.S. ___ (2002). Direct
threat determinations must be based on an individualized assessment
of the individual's present ability to safely perform the essential
functions of the job, considering a reasonable medical judgment relying
on the most current medical knowledge and/or best available objective
evidence. 29 C.F.R. � 1630.2(r)(1998). To determine whether an employee
poses a direct threat, the following factors should be considered: (1)
the duration of the risk; (2) the nature and severity of the potential
harm; (3) the likelihood that potential harm will occur; and, (4) the
imminence of the potential harm. Id.
9The Commission explained this standard in its enforcement guidance on
The ADA and Psychiatric Disabilities, note 6, at 15, 8 FEP at 405:7468-69.
10 We find that complainant cannot establish that discrimination
occurred, as to item three, on any of his claimed bases. More likely than
not, the agency terminated complainant's benefits as a matter of course,
given his non-duty status, which was in accordance with its labor policy.
11 See Interim Relief Order below.