01a42577
02-16-2005
Frank J. Cole, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Frank J. Cole v. Department of the Navy
01A42577
February 16, 2005
.
Frank J. Cole,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A42577
Agency No. 02-00174-003
Hearing No. 120-2003-00259X
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1>
The record reveals that complainant, formerly a Police Officer at the
agency's Indian Head, Maryland facility, filed a formal EEO complaint
on June 4, 2002, alleging that the agency discriminated against him on
the basis of disability (alleged impairment of sleep apnea)<2> when:
On February 24, 2002, the agency notified complainant that he could
not carry a weapon; and,
On March 23, 2002, complainant's supervisor contacted his physician
regarding his medical condition and personal records, in violation of
his privacy rights and doctor-patient privilege.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On November 25, 2003, the AJ dismissed complainant's hearing
request on the basis that complainant failed to participate in the EEO
process and remanded the matter to the agency for a decision. On December
19, 2003, complainant requested reconsideration of the AJ's dismissal,
but on January 7, 2004, the AJ denied complainant's request. In a final
decision dated March 5, 2004, the agency found no discrimination on both
of complainant's claims.
Failure to Cooperate
The record reveals that in April 2003, the parties were ordered to
provide prehearing statements in June 2003, and to appear for a prehearing
conference call on July 10, 2003. In July 2003, the prehearing conference
was held with the parties' representatives, and the agency raised the
claim that complainant had neither responded to discovery requests or
its Motion to Compel filed in late June 2003, nor had complainant filed
a prehearing statement. Subsequently, both parties reached a verbal
settlement, but each party reserved final approval of the agreement
to their clients. In September 2003, the agency notified the AJ that
complainant had decided not to settle and was seeking another attorney.
On October 22, 2003, the AJ issued a Show Cause Order. In the Order, the
AJ stated that complainant failed to contact her and provide the agency
with discovery responses. The AJ stated that complainant must provide
her with a written explanation for his failure to participate in the EEO
process by November 7, 2003, and show cause why his complaint should not
be dismissed for failure to cooperate. In an Order of Dismissal dated
November 25, 2003, the AJ stated that complainant had not responded to her
Show Cause Order and failed to provide the agency with responses to its
discovery requests. Consequently, the AJ dismissed complainant's request
for a hearing and remanded the matter to the agency for a final decision.
An AJ may dismiss a complainant's request for a hearing as a sanction
for failure to cooperate pursuant to the provisions of 29 C.F.R. �
1614.109(f)(3). See Hale v. Department of Justice, EEOC Appeal
No. 01A03341 (December 8, 2000). Sanctions must be tailored in each
case to appropriately address the conduct of the party being sanctioned.
A sanction may be used to both deter the non-complying party from similar
conduct in the future, as well as to equitably remedy the opposing party.
Upon review of this matter, we note that the AJ provided complainant with
notice of the consequences of his failure to respond to her Show Cause
Order by November 7, 2003. Therefore, we find that the AJ acted properly
when she denied complainant's request for a hearing as a sanction for
his failure to cooperate in the EEO process. See LeBlond v. Department
of the Treasury, EEOC Appeal No. 01A02534 (February 15, 2001), request
to reconsider denied, EEOC Request No. 05A10383 (June 14, 2001).
Claim 1
As a preliminary matter, we note that we review the decision
on an appeal from a final agency decision de novo. 29 C.F.R. �
1614.405(a). Accordingly, we have carefully reviewed the entire record
before us in our attempt to discern whether a preponderance of the
evidence warrants a modification of the agency's ruling. See 29 C.F.R. �
1614.405(a).
A complainant who is claiming disability discrimination must first
establish that he was a qualified individual with a disability at the
time of the alleged unlawful discriminatory conduct. An "individual
with a disability" is defined for purposes of the Rehabilitation Act
as an individual who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment. 29
C.F.R. � 1630.2(g). In determining whether an individual is substantially
limited in a major life activity one must consider "[t]he nature and
severity of the impairment," "[t]he duration or expected duration of the
impairment," and "[t]he permanent or long term impact, or the expected
permanent or long term impact of or resulting from the impairment."
29 C.F.R. � 1630.2(j)(2)(i), (ii), (iii).
Applying this analysis to the instant matter, we find that complainant
did not meet his threshold burden of establishing that he was an
individual with a disability. The only evidence of record pertaining to
complainant's alleged medical condition is contained in three documents.
One of these documents�-a one-paragraph note dated March 7, 2002 on the
letterhead of complainant's physician--merely stated that complainant
could not carry a gun, and a mask had been made for him to wear at night
to help with his sleeping problems. In a one-sentence note dated May 2,
2002, complainant's physician stated that he recommended that complainant
be scheduled for day work because of his sleep apnea. The third one-page
document dated February 21, 2002, ostensibly written by agency officials,
noted that complainant's condition made him sleepy and tired, caused the
interruption of his sleep, and required him to wear a mask. While this
record evidence provides a vague description of complainant's medical
condition, it does not provide any indication as to whether, or to what
extent, his medical condition imposed a substantial limitation upon
any major life activity, such as sleeping or breathing. For instance,
there is no documentation regarding how often complainant's sleeping
was interrupted or the degree to which complainant's condition made him
sleepy and tired. Because there are degrees to which an individual may
be tired or sleepy, the general assertion that complainant's condition
made him sleepy and tired is insufficient to prove that complainant
was substantially limited in any major life activities.<3> Likewise,
there is also no medical evidence regarding the permanency or expected
duration of complainant's medical condition. Accordingly, we find that
complainant failed to prove that his impairment substantially limited
in any of his major life activities. See Wilson v. Department of the
Air Force, EEOC Appeal No. 01A14669 (February 21, 2003)(complainant
with sleep apnea failed to provide evidence establishing that he was
substantially limited in a major life activity). We further find that
there is no evidence that complainant had a record of, or was regarded
as having, an impairment which substantially limited any of his major
life activities. Therefore, complainant has not established that at
the relevant time he was an individual with a disability entitled to
protection under the Rehabilitation Act.
Claim 2
Complainant also claimed that the agency violated the Rehabilitation
Act when the Supervisory Police Officer contacted his physician and
inquired about his medical condition. In an investigative affidavit,
the Supervisory Police Officer maintained that he called complainant's
physician to clarify a partially-illegible letter submitted by
complainant from his physician indicating that complainant needed a
schedule change because of sleep apnea. The Rehabilitation Act places
certain limitations on an employer's ability to make disability-related
inquires or require medical examinations of employees. Such inquiries and
examinations are permissible only if they are job-related and consistent
with business necessity. 29 C.F.R. �� 1630.13(b), .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 due to a medical
condition.� Enforcement Guidance on Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans with Disabilities
Act (ADA), No. 915.002 (July 27, 2000).<4> It is the burden of the
employer to show that its disability-related inquiries and requests for
examination are job-related and consistent with business necessity. Id.
Based upon complainant's disclosure of his sleep apnea and his request
for a shift change, we find that the Supervisory Police Officer had
a reasonable belief that complainant's ability to safely use deadly
force might be impaired. See Jaskot v. Department of Veterans Affairs,
EEOC Appeal No. 01996450 (June 19, 2002)(supervisor's contact with
complainant's personal physician after complainant requested leave
for claimed disability was job-related and consistent with business
necessity).<5> Moreover, we find that the Supervisory Police Officer's
inquiry was appropriately limited to determining the extent to which
complainant's impairment might limit his ability to do his job and was
not overbroad. Therefore, we conclude that the supervisor's inquiry
was not a violation of the Rehabilitation Act.
Accordingly, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final decision for the reasons set forth in this decision.
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:
______________________________ __February 16, 2005_
Stephen Llewellyn Date
Acting Executive Officer
Executive Secretariat
1"The Commission notes the decision of the Court of Appeals for
the District of Columbia which found appellant's representative of
record guilty of four counts of criminal contempt for violations of a
court order placing certain limitations on his representations to the
public that he is "a former administrative law judge and a provider
of nationwide representation." See In Re Simon Banks , D.C. Circuit
of Appeals No. 02-BG-1374 (April 8, 2004). In view of this decision,
and the uncertain status of Mr. Banks, our decision is being mailed
directly to appellant."
2We note that on October 23, 2002, complainant withdrew his claim that
he was also subjected to reprisal.
3 In order to meet this burden, complainant might have provided medical
documentation establishing how many average hours of sleep he lost per
night or week because of sleep apnea and details about the implications
this sleep deficit made on various aspects of his life.
4Restrictions on inquiries and examinations apply to all employees, not
just individuals with disabilities. Thus, any employee has the right
to challenge a disability related inquiry or medical examination that
is not job related and consistent with business necessity.
5As a practical matter, however, an agency should obtain a limited
release from an employee prior to making a disability-related inquiry to
an employee's physician because typically a physician will not release
medical information without one. However, failure of an agency to obtain
a release prior to making an otherwise permissible disability-related
inquiry does not violate the Rehabilitation Act. See Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (ADA), No. 915.002
(July 27, 2000).