01996301
01-16-2002
Donald Bruno, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Donald Bruno v. United States Postal Service
01996301
January 16, 2002
.
Donald Bruno,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01996301
Agency No. 4F-950-0031-97
Hearing No. 370-97-X2604
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 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 order.
The record reveals that complainant, a letter carrier at the agency's
Monterey, California facility, filed a formal EEO complaint on November
22, 1996, alleging that the agency had discriminated against him on the
bases of sex (male), disability (bipolar disorder and anxiety disorder),
and age (DOB: 3/10/53) when:
on September 17, 1996, a supervisor (S1) put his hand within inches of
complainant's face in a threatening manner; and
he was not allowed to work from September 23-26, 1996, although he
provided a medical release to return to work.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In her decision, the AJ concluded, with respect to the first incident,
that complainant failed to establish a prima facie case of discrimination.
In so concluding, the AJ determined that the action by S1 did not
constitute an adverse action for the purposes of a disparate treatment
claim, nor was it sufficiently offensive standing alone so as to
constitute a hostile work environment. Regarding the second incident,
the AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action without specifically determining whether complainant
made a prima facie case of discrimination. Specifically, the AJ found
that the reason complainant was not permitted to return to work was
because he did not properly follow agency regulation requiring him to
submit his medical clearance to the medical unit.
The AJ then concluded that complainant failed to establish that more
likely than not, the reasons provided by the agency were a pretext for
discrimination. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she did not
construe complainant's complaint to allege a failure of the agency
to reasonably accommodate complainant's disability. Complainant also
disputes the conclusions drawn by the AJ: 1) that S1 did not create an
intimidating or hostile environment for complainant based on his sex,
age or disability; and 2) that the agency was negligent in not permitting
him to go back to work on September 23.<2> Further, complainant raises
the additional claim that S1 improperly disclosed complainant's medical
information. Insomuch as complainant is raising this argument for the
first time on appeal, we will not address it.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's age, sex
or disability. Further, we concur with the AJ's finding that the reason
complainant was not permitted to return was because he failed to follow
agency regulations.
With respect to the issue of whether denying complainant entry into the
workplace on September 23 was tantamount to a refusal to accommodate
his disability requires a more in-depth inquiry. To establish a
case of discrimination based on a failure to accommodate a disability,
complainant must show: (1) that she is an individual with a disability and
(2) that she is a qualified individual with a disability, in that she is
qualified for and can perform the essential elements of the position
held or desired with or without reasonable accommodation. Cansino
v. Department of the Army, EEOC Request No. 05960674 (Aug. 27, 1998)
(citing Prewitt v. United States Postal Service, 662 F.2d 292 (5th
Cir. 1981)). An individual with a disability is one who: 1) has a
physical or mental impairment that substantially limits or restricts
one or more of his or her major life activities; 2) has a record of
such impairment; or (3) is regarded as having the impairment. See 29
C.F.R. � 1630.2(g). Major life activities include functions such as
self care, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. See 29 C.F.R. � 1630.2(i).
Herein complainant did not ask for leave or a modification of his job
duties, location, or the like. Complainant, therefore, did not make a
request for a reasonable accommodation. Rather, complainant's argument
can be construed as an opposition to the medical clearance requirement
that prevented him from returning to work on September 23.
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:
The ADA [Americans with Disabilities Act] states, in relevant part:
A covered entity<3> 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.<4>
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,<5> 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.<6>
Disability Guidance at 5. (Footnotes in original). Thus, we need not
determine whether complainant is a qualified individual with a disability.
The Disability Guidance goes on to state that an employer may make
disability-related inquires or require a medical examination when an
employee has been on leave for a medical condition and seeks to return
to work. An employer may do so when the �employer has a reasonable belief
that an employee's present ability to perform essential job functions
will be impaired by a medical condition or that s/he will pose a direct
threat due to a medical condition . . . .� (Emphasis in original)
Herein, following the incident with S1 on September 17, complainant
requested Continuation of Pay leave and left the post office. Complainant
went to see his psychiatrist, who diagnosed the complainant as suffering
from �acute stress.� The psychiatrist advised complainant to remain
off work until September 23.
When complainant sought to return to work on September 23, he was advised
that he could not do so until the district's medical officer had received
and reviewed complainant's medical clearance. Complainant was made aware
that such a clearance would be required, and to whom it must be provided,
via letter dated September 17 from a management official.
We find that the agency had a reasonable belief that complainant could
pose a direct threat due to his medical condition and, thus, that the
request for medical clearance was job-related and consistent with the
agency's business necessity. Indeed, by complainant's on admissions in
his statement on appeal, prior to his departure on September 17th, he
had been behaving in an �excitable� manner. As to the agency's review of
the psychiatrist's medical clearance, agency officials stated that they
merely wanted a clarification from the agency medical unit as to what
�stressed� meant. Finally, within four days, the medical documentation
had been received and promptly reviewed by the district's medical unit,
and complainant was returned to work.
The Commission discerns no basis to disturb the AJ's decision. 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 agency's final order.
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
January 16, 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 As stated above, all dates occur in 1996.
3"Covered entity� means an employer, employment agency, labor
organization, or joint labor management committee. 29 C.F.R. �
1630.2(b)(1998). For simplicity, this guidance refers to all covered
entities as �employers.� The definition of �employer� includes persons
who are �agents� of the employer, such as managers, supervisors, or
others who act for the employer (e.g., agencies used to conduct background
checks on applicants and employees). 42 U.S.C. � 12111(5)(1994).
442 U.S.C. � 12112(d)(4)(A)(1994); 29 C.F.R. �1630.14(c)(1998).
See Disability Guidance at Question 5 and accompanying text for a
discussion of what the �job-related and consistent with business
necessity� standard means.
5See 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).
6Congress 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�).