0120070891
09-11-2007
Wally M. DeRose, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Wally M. DeRose,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120070891
Agency Nos. HS 05-ICE-000597,
ICE-05-C362
DECISION
On November 30, 2006, complainant filed an appeal from the agency's
October 26, 2006, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted for the Commission's de novo review pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Physical Security Specialist, GS-0080-12, in the agency's Federal
Protective Service, at the Chicago Field Office in Chicago, Illinois.
On August 23, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age (D.O.B. 08/27/38) and in
reprisal (for prior protected EEO activity arising under the ADEA) when,
on June 8, 2005, after he submitted documentation from his physician
indicating that he should not attend a scheduled training session because
of the excessive physical activity involved, the agency ordered him to
submit additional medical documentation, suspended his law enforcement
authority, including removal of his weapon, and then, under threat of
termination, ordered him to submit to a fitness for duty examination
(FFDE) which he attended on July 7, 2005.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The agency concluded that complainant failed
to prove that he was subjected to discrimination as alleged. The agency
assumed, for the purposes of analysis, that complainant had shown a prima
facie case of age and reprisal discrimination. It then found that it
had articulated legitimate, nondiscriminatory reasons for its actions,
namely, that following complainant's submission of medical documentation
from his physician which stated that complainant would be unable
to attend mandatory physical training entitled "ALERT" (Advanced Law
Enforcement Refresher Training Program), it was entitled to more detailed
information which would enable the agency to determine complainant's
health status and his ability to carry out his law enforcement duties.
When complainant failed to submit the specific information requested,
the agency ordered a FFDE, which it stated EEO regulations allowed
it to do when there is a need for an agency to determine whether an
employee is able to perform the essential functions of his or her job.
Complainant had argued that the agency's reasons were pretextual, in
that he was the most senior Physical Security Specialist who had chosen
not to transition to the rank of Inspector, and that the agency did not
want his position to exist any longer. He also argued that the request
for medical documentation and the FFDE were not standard procedures
for employees in his job classification. The agency concluded that
complainant's arguments were not sufficient to prove that the agency's
actions were a pretext for discrimination, and it found that complainant
had not been discriminated against due to his age or in reprisal for
his prior protected EEO activity. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainant argued that the agency had impermissibly sent him
for a FFDE, and that he did not meet the criteria for having to undergo a
FFDE, as he understood that criteria to be. He argued that he had been
sent for an FFDE for "harassment purposes" and in retaliation for his
previous EEO cases. He claimed that his position did not include law
enforcement duties as an essential function, but rather that his main
duty was to conduct threat assessments. The agency did not submit any
brief in response to complainant's appeal.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
For the purposes of analysis, we assume that complainant made out a
showing of a prima facie case of age and of reprisal discrimination.
We next turn to the agency's proffer of a legitimate, nondiscriminatory
reason for its actions, namely that EEO regulations, as well as
agency policies, permit it to request detailed medical information and
to require submission to a FFDE in certain circumstances (citing 29
C.F.R. � 1630.14(c)).1 The agency believed that with the submission of
complainant's medical documentation from his physician, which indicated
that complainant would be unable to attend mandatory physical training
entitled "ALERT," a legitimate question was raised as to whether
complainant could perform the essential functions of his position.
The information request by the agency was job-related and consistent
with business necessity, and the FFDE was restricted to obtaining that
medical information which would enable the agency to determine whether
complainant could perform the essential functions of his position.
As the agency has met its burden to produce a legitimate,
nondiscriminatory reason for its actions, the burden now shifts to
complainant to show that the agency's reasons for requesting additional
medical information and for sending him to the FFDE were merely a pretext
for age and reprisal discrimination. We find that complainant has failed
to make this showing. Complainant does not dispute that his physician
had submitted a letter to the agency detailing physical restrictions
for complainant. Although complainant argued that "law enforcement"
was not an essential function, we note that he was permitted to carry
a firearm and is an employee of the Federal Protective Service, a law
enforcement agency. He argues that the agency was trying to harass him
into retirement because the agency wanted to eliminate his position but
provides no objective evidence of this. Complainant also argues that
the agency was retaliating against him for his previous EEO activity,
but he does not provide any plausible reason why they would be motivated
to do so. One of complainant's previous EEO cases, in which he prevailed,
was against a different and unrelated government agency, and there is no
indication in the record that the named responsible management officials
in his previous case against this agency were the same management
officials involved in the instant matter.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not shown that he was discriminated against as alleged,
and we affirm the agency's finding of no discrimination.
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
9-11-07
__________________
Date
1 Complainant did not claim that he was sent for a FFDE in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (the Rehabilitation Act). Although complainant raised
the issue of disability discrimination with the EEO Counselor at the
informal counseling stage, on the basis that the agency regarded him
as disabled, the record shows that when complainant filed his formal
complaint on August 23, 2005, he did not select disability as a basis of
discrimination. The agency's letter accepting complainant's complaint
for investigation and defining the claim for the investigator did not
list disability as a basis, and it informed complainant that if he
believed the issue to be investigated had not been properly defined, he
should contact the agency within five days of his receipt of the letter.
The record does not show that complainant disputed the agency's definition
of his complaint.
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0120070891
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070891