01A11871
09-09-2002
Albert Morton, Complainant, v. Department of Commerce Agency.
Albert Morton v. Department of Commerce
01A11871
September 9, 2002
.
Albert Morton,
Complainant,
v.
Department of Commerce
Agency.
Appeal No. 01A11871
Agency Nos. 98-51-10085, 98-51-10160, 99-51-00383
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints of unlawful 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>,
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 AFFIRMS the agency's
final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Audio-Visual Equipment Operator, WG-3901-10, at the agency's
Building Management Division, Office of the Secretary, Washington, D.C.
Complainant sought EEO counseling and subsequently filed three formal
complaints, alleging that he was discriminated against on the bases of
race (Black), age (D.O.B. 5/18/34), disability (vertigo) and reprisal
for prior EEO activity.
Claim 1. Complaint No. 98-51-10085 (filed May 14, 1998). Complainant's
work was scrutinized and the quality of his work was continually
disputed.
Claim 2. Complaint No. 98-51-10160 (filed June 19, 1998). Complainant
received an unfavorable performance appraisal for 1997.<2>
Claim 3. Complaint No. 99-51-00383 (filed July 20, 1999). Complainant's
supervisor (S1) ordered him to undergo a Fitness for Duty Examination
(FFDE); and S1 did not properly arrange for the agency to pay the bill
for the FFDE, a bill for $1500.00 and marked �overdue� was issued to
complainant at his work address and disclosed to his co-workers.
Concerning claims 1 and 2, complainant avers that he was the most
experienced audio-visual operator within his department but that his work
was being closely scrutinized, and that he was consistently being blamed
when things went wrong. Complainant alleged that it was this attitude
and approach by management that led to his performance appraisal being
downgraded from an Outstanding to a Fully Successful rating for fiscal
year (FY) 1997.
Concerning claim 3, complainant avers that after his medical records
could not be found at the agency, S1 arranged for him to undergo a FFDE.
Complainant alleged that he was being singled out due to his age.
Complainant further avers that it was determined by the FFDE that he had
no physical disabilities and, as a result, his handicap parking space
was revoked. Also, complainant avers that after the FFDE he received
a bill for the cost of the exam.
The complaints were consolidated, and at the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested that the agency issue a
final decision.
In its FAD, the agency proceeded to examine whether the agency articulated
legitimate, nondiscriminatory reasons for its action, recognizing that
if the agency did so, then the complainant would be required to prove,
by a preponderance of the evidence, that the legitimate reasons proffered
by the agency were a pretext for discrimination. Concerning claims 1
and 2, the agency stated that while complainant's work met some of the
performance goals, his work was basically average, not outstanding in any
way, and that his work deserved scrutiny, e.g., video taping was jerky,
there was shakiness in the video, there were miscues of the camera,
and there were problems with audio taping. Further, the agency stated
that complainant attempted to perform his duties in an outdated fashion,
and had poor record keeping practices for purchasing new equipment,
requiring the revocation of his government credit card.
Concerning claim 3, the agency stated that when the department was going
through reorganization, complainant was working in a cluttered equipment
room which was not contiguous to the space in which other team members
were located, and the agency wanted him closer to the rest of the team.
When complainant opposed the move stating that his medical condition
required him to work in certain conditions, S1 requested updated medical
documentation to support his claim. After complainant presented a
doctor's note stating that he should not be allowed in cold and dusty
areas, the agency determined that the new space would satisfy the medical
requirements. Thereafter, complainant presented to the agency additional
medical information that complainant suffered from vertigo. Since part of
complainant's job responsibility consisted of moving equipment around the
agency's large building, S1 was concerned about complainant's continuing
ability to perform his job. Concerning the bill for the FFDE, the
agency stated that the arrangements for the services clearly provided
an agency contact name, telephone and fax numbers for billing matters,
and that a bill should not have been submitted to complainant. Further,
the agency stated that it had paid the bill.
CONTENTIONS ON APPEAL
On appeal, complainant submits exhibits, statements, reports, and
arguments, many of which were contained in the Report of Investigation,
and some of which were also a part of other EEO complaints. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Claims of discrimination alleging disparate treatment are examined
under the tripartite analysis set forth in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973), and its progeny. At all times, complainant
retains the burden of persuasion, and it is his obligation to persuade by
preponderant evidence the ultimate issue of whether the agency's actions
were motivated by discrimination. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Absent a showing that the agency's
articulated reasons was pretext, complainant cannot prevail. Here, for
purposes of further analysis, assuming, arguendo, that complainant had
established a prima facie case of discrimination, we consider whether the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Concerning claims 1 and 2, the record reflects that the heightened
scrutiny of complainant and his appraisal were based on complainant's
performance of his work, and were not due to discrimination on any of
the alleged bases. The record reflects that there were agency concerns
that complainant had made poor decisions, that complainant had not kept
current with knowledge in his area, and that others had to redo some of
complainant's work. The record also reflected that complainant seldom
kept the proper records for equipment purchases, as required, and that
complainant had very incomplete inventory listings.
Concerning claim 3-FFDE and its bill, the record reflects that the agency
had a reasonable belief, based on objective evidence, that complainant's
ability to safely perform essential job functions would be impaired by
his vertigo.<3> Complainant's position required complainant to carry
and set up audio-visual equipment, and required physical exertion such as
extensive walking, recurring bending or standing for long periods of time,
and setting up equipment that weighs up to fifty pounds. The record
shows that these agency's concerns were job related and consistent
with business necessity. Also, in that complainant was seeking as
a result of his condition - a condition that was not obvious to the
agency - that he not be moved to a new office location, a request for
updated medical information and the request for a FFDE were reasonable
and appropriate. Under these circumstances the agency's request for
updated medical information and a FFDE was job related and consistent
with business necessity and did not violate the Rehabilitation Act.
Also in light of the fact that complainant was not forthcoming with
updated medical information, a FFDE was reasonable and appropriate,
so long as the agency bore the costs.<4> Further, complainant has not
offered any evidence that he was being singled out because of his age.
The record reflects that the agency recognized its obligation to pay for
the FFDE, and instructed its Health Specialist (HS) to arrange for the
FFDE with its private occupational health provider. The HS testified
that the fee for the test was to be charged on the government credit card
as soon as the test was complete. The HS testified that the credit card
records indicated that this was done. We note that since any invoice or
bill that complainant had received was sent by the health provider and
not the agency, that the agency did not discriminate against complainant
when he received the bill.<5>
After reviewing the entire record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The burden returns
to complainant to demonstrate that the agency's reasons were a pretext
for discrimination, that is, that the agency's reasons were not true
and that the agency was more likely motivated by discriminatory reasons.
Concerning pretext, complainant avers that agency officials are annoyed
at him because he had filed a series of grievances and complaints
against his supervisors. Also, complainant avers that the agency is
not coming forth with the true facts. Further, complainant avers that
he is convinced that the agency's actions were done for discriminatory
purposes, but complainant does not set forth sufficient evidence to
support his belief. The Commission finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
September 9, 2002
Date
1 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.
2 Complainant also filed Complaint No. 98-51-0178 on May 14, 1998,
which complaint also concerned a performance evaluation. See Morton
v. Department of Commerce, EEOC Appeal No. 01A13270 (July 9, 2002).
Complaint No. 99-51-00383 was discussed in Morton v. Department of
Commerce, EEOC Appeal No. 01986930 (October 27, 1999), but it was
determined to be for a different appraisal, and therefore, the Commission
reversed the agency's decision to dismiss the allegation.
3 In order to justify its request that complainant provide medical
documentation of his physical restrictions, the agency must show that the
disability-related inquiry was job related and consistent with business
necessity. See Enforcement Guidance: Disability - Related Inquires and
Medical Examinations of Employees under the Americans with Disabilities
Act (ADA), No. 915.002, at 6-8 (July 27, 2000).
4 The ROI reflects that complainant was judged to be able to move into
the new space and perform his duties normally.
5 The ROI states that complainant informed the investigator that
complainant did not keep a copy of the bill.