Carlton T.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120181740 (E.E.O.C. Aug. 20, 2019)

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

Carlton T.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Appeal No. 0120181740

Hearing No. 570-2016-00040X

Agency No. USM201501286

DECISION

On May 2, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 5, 2018, final order 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the Equal Employment Opportunity Commission’s Administrative
Judge (AJ) erred in finding that the Agency did not discriminate against Complainant when he was
terminated by his Contract employer (Contractor) for failure to provide requested medical
documentation.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Court Security
Officer (CSO), at the Agency’s facility in the Eastern District of Virginia. Under the Agency’s
contact with the Contractor a yearly physical examination was required for all CSOs.
Complainant, a contractor with 17 years’ experience, had previously been diagnosed with Type II
diabetes since approximately 2009, osteoarthritis since approximately 2000, and anemia, for an
undetermined amount of time.

On July 10, 2013, Complainant took his annual physical exam for FY 2013. The
Agency/Contractor approved physician indicated that “there were no contraindications to his
performance of aggressive security activities.” Complainant’s July 10, 2013 results were reviewed
by a Federal Occupational Health (FOH) physician on September 23, 2013. The FOH physician
requested additional information about Complainant’s anemia, arthritis and a knee replacement
surgery that he had had in 2005. Complainant was allowed to work pending additional medical
documentation. The FOH physician thereafter noted that, “medical determination deferred pending
further documentation.” As such, Complainant was deemed conditionally medically qualified
pending his submission of additional medical information.

On April 14, 2014, Complainant had a stroke and went out on FMLA leave. On May 5, 2014,
Complainant’s physician wrote that, “Complainant was incapacitated to such an extent that he was
unable to perform all CSO job functions.” While Complainant was on leave, the FOH sent a letter
to him indicating that “all medical documents required regarding the arthritis had been met,” but,
the information regarding Complainant’s anemia and knee replacement had not been received.

On June 24, 2014, Complainant underwent a return to work examination in conjunction with his
return from FMA leave. Complainant’s physician completed the work evaluation and indicated
that Complainant could safely return to his position. On July 15, 2014, after a review of
Complainant’s return to work documentation, the FOH physician recommended that Complainant
not be allowed back to work pending additional information about his stroke. The FOH physician
noted that the medical documentation showed that, “the visual field defect is improving; that
Complainant was being treated with Plavix and had an increased risk of another stroke,” but that
his treating physician had cleared him for duty without restrictions. The FOH physician deemed
Complainant “not medically qualified” pending additional information. Complainant was given
sixty days from the FOH physician’s July 16, 2014, letter to comply with the request for additional
medical information because the medical information that had been received was insufficient.

On August 5, 2014 and August 22, 2014, additional medical documentation was submitted.
However, on August 21, 2014, the FOH physician again asked for medical documentation relating
to the FY 2013 physical exam. The FOH physician specifically wanted more information
regarding Complainant’s anemia which he believed had led to Complainant’s stroke, and he
wanted information regarding his visual field, and the medications that he was taking.
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The request regarding the FY 2013 physical exam had a specific merit number, while his return to
work assessment had a second assigned number, so essentially, Complainant was receiving
requests for medical documentation from two sources.

On September 2014, a second FOH physician (FOH-2) reviewed Complainant’s medical
documentation and also disagreed with Complainant’s physician that he could return to work.
FOH-2 physician noted that a medication that had not previously been listed was now listed, and
that this medication could cause hypoglycemia, so more medical information was needed
regarding his stroke, anemia and diabetes. On September 4, 2014, the Agency advised the
Contractor that it could not determine Complainant’s qualification status for the FY13 year and
therefore, Complainant would not be allowed to perform under the contract unless the requested
medical documentation was provided within 60 days.

On September 30, 2014, Complainant took his FY 2014 annual physical as required. The physician
wrote that there were no contraindications to his performance. Complainant did not however
submit any additional information as requested in the September 4, 2014, medical documentation
request. Complainant indicated that he attempted to schedule an appointment with his physician
but was unable to do so within the 60-day time limit that had been set.

On November 10, 2014, the Contractor sent Complainant a letter terminating his employment.
The letter indicated that his termination was “a direct result of his failure to provide all of the
required medical follow-up documentation mandated by [the Agency] and FOH necessary to make
a determination of his medical qualification. The Contractor, on this same day, alerted the Agency
that Complainant had been terminated.

Complainant maintained that the Agency subjected him to an adverse action by failing to certify
him as medically qualified. Complainant indicated that had the Agency not set a 60-day time
requirement for the documents, the Contractor would not have been compelled to terminate him.

On January 16, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (diabetes, osteoarthritis, anemia, stroke survivor) when, on
approximately November 10, 2014, after being subjected to excessive, confusing, and unduly
burdensome follow-up medical assessments, the Agency requested that he be removed from
performing services as a Court Security Officer on the contract. Complainant alleged that he was
subsequently terminated from his employment with the Contractor on November 10, 2014.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and
the AJ held a hearing on October 17 and 30, 2017, and issued a decision on February 28, 2018.2
The AJ assumed, without finding, that Complainant was a qualified individual with a disability.

2 Complainant attempted to amend his complaint to include a class complaint, but later elected not
to proceed with his class allegations.
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Nevertheless, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons
for its actions, namely that the Agency did not make the decision to terminate Complainant.
Complainant’s contracting agency made the decision to terminate his contract, in November 2014,
after Complainant failed to provide the requested medical information.

The AJ acknowledged that Complainant was frustrated by the multiple requests for medical
information from both the Agency and the Contractor. However, in order for Complainant to be
cleared to return to work, requests for clarification of the medical documentation provided were
necessary. When Complainant did not provide the medical documentation requested, the
Contractor not the Agency terminated his employment. The AJ found that Complainant did not
show that the Agency’s reasons were pretext for discrimination or that discriminatory animus was
involved.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in finding that Complainant was not subjected
to discrimination. Complainant argues that the medical review process resulted in unlawful
discrimination as it requests information that is not job related and consistent with a business
necessity. He also maintains that the AJ analyzed the wrong issue. The issue that the AJ should
have addressed was: whether the Agency unlawfully refused to medically clear Complainant
which necessarily prevented Complainant from working on a Court Security Officer on the
contract. Further, Complainant contends that the medical review process was so unjust that the
EEOC is now looking at disability discrimination charges brought by Court Security Officers
against the federal contractors who employ them.

In response, the Agency requests that its final order be affirmed, as it articulated legitimate,
nondiscriminatory reasons for its actions and Complainant failed to demonstrate that the reasons
were pretext for discrimination or that discriminatory animus was involved.

ANALYSIS AND FINDINGS

Standard of Review

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.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that substantial evidence in the record supports the AJ’s
finding that assuming, arguendo, Complainant is a qualified individual with a disability, and, that
he established a prima facie case of disability discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Agency explained that in reaction to
the medical documentation that it received it requested additional medical documentation for
clarification. Complainant’s contract employer also requested medical documentation and when
Complainant did not provide that medical documentation by the date requested, the contractor
terminated Complainant’s employment. We find that there is substantial evidence to support the
AJ’s determination that Complainant did not demonstrate that the Agency’s reasons were pretext
for discrimination or that discriminatory animus was involved.

Moreover, we find that the record indicates that the Agency directed Complainant to report for
medical examinations and made other medical inquiries and requests for documents for reasons
that were job related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b),
1630.14(c). Therefore, we do not find that the Agency’s actions were unlawful. With respect to
Complainant’s other contentions on appeal, we find that other than his conclusory statements, he
has not provided any evidence that pretext or discriminatory animus by the Agency was involved
in this matter.

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CONCLUSION

Accordingly, because we find that there is substantial evidence in the record to support the AJ’s
decision, we AFFIRM the Agency’s final order which adopted the AJ’s determination that
Complainant did not demonstrate that he was subjected to discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

August 20, 2019
Date