0120112320
01-08-2016
Judson P., 1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Judson P., 1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal Nos. 0120112320; 0120123133
Agency Nos. HS08CBP008441; HS09CBP004727; HS10CBP001203
DECISION
Complainant filed an appeal from the Agency's February 10, 2011 final decision. On August 7, 2012, Complainant also filed an appeal from the Agency's June 29, 2012 final decision. Both of these appeals concerned his equal employment opportunity (EEO) complaints alleging 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.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeals are accepted pursuant to 29 C.F.R. � 1614.405(a). In the interest of administrative economy, the Commission exercises its discretion and consolidates the two appeals. For the following reasons, the Commission AFFIRMS the Agency's final decisions.
ISSUES PRESENTED
The issues presented are whether the Agency correctly determined that Complainant was not subjected to discrimination, harassment, or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBPO) assigned to the Airport/Foreign Trade Zone, in the Office of Field Operations in El Paso, Texas.
EEOC Appeal No. 0120112320
On September 30, 2008 and on May 21, 2009, Complainant filed complaints alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of age (50), physical and mental disabilities (sleep apnea and irregular sleeping patterns, severe headaches, short-term memory loss, cervical and lumbar spine disc displacement, depression and anxiety, and vision and bearing loss), and reprisal (prior EEO activity) when:2
1. On May 31, 2008, he learned that he was not selected for an assignment in Passport Control Secondary Operations (PCS) at the Bridge of the Americas;
2. On July 3,2008, his authority to carry a firearm was withdrawn, he was assigned light duty, and he was not allowed to work any additional overtime;
3. On approximately July 3, 2008, his medical information was distributed to employees who did not have a need to know;
4. On approximately December 1, 2008, his Fitness for Duty Examination (FFDE) was delayed.
5. On February 5, 2009, he was required to undergo an Independent Medical Examination (IME) and a Functional Capacity Evaluation (FCE);
6. On April 16, 2009, he was issued a letter advising him that he was no longer fit for duty as a CBP Officer (CBPO) and that he needed to file for disability retirement, request a reassignment to a non-CBPO position, or resign from federal employment, and that he would be removed from federal employment if he failed to act within 15 calendar days;
7. Management denied his April 7, 2009 reasonable accommodation request, as amended on May 13,2009, to be returned to full duty with no restrictions; and
8. On May 26, 2009, he received a letter proposing his removal from federal employment.
After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the complaints were consolidated for processing. On September 16, 2009, the AJ issued an Order Directing Medical Examination to definitively determine Complainant's fitness for duty. The AJ noted that the complaints "involved contradictory and otherwise confusing medical documentation." However, on March 12, 2010, Complainant withdrew his requests for a hearing and requested that the Agency issue a final decision on the complaints.
In its final decision, the Agency dismissed claim 8 because it alleged that a proposal to take a personnel action or other preliminary step was discriminatory. The Agency found that "management proposed Complainant's removal from federal service. Because management's proposal was preliminary, [it] did not render Complainant aggrieved." However the Agency noted that the claim would be considered part of Complainant's harassment claim.
The Agency found the following facts: In April 2008, the Agency posted a Vacancy Announcement for a reassignment to the PCS position. Shortly thereafter, the Agency rescinded the vacancy announcement without making any selections. Management reassigned six CBPOs to the PCS positions.
In July 2008, management became aware of certain medications that Complainant was taking for his physical condition. As a result, management advised Complainant that his firearm was rescinded, and he was placed on light duty.
On November 17, 2008, management instructed Complainant to submit to a FFDE on December 2, 2008. On December 1, 2008, management informed Complainant that the FFDE had been cancelled. Complainant's FFDE was conducted on January 6, 2009.
On February 5, 2009, Complainant submitted to an IME and an FCE. The physician reported that Complainant's heart rate exceeded the maximum predicted heart rate, that he was incapable of sustaining a light level of work for a 40-hour work week, and that he could perform a sedentary job with standing and walking.
On April 16, 2009, management issued Complainant a letter advising that he was no longer fit for duty as a CBPO. The letter provided Complainant three options: (1) file for disability retirement; (2) request a reassignment to a non-CBPO position; or (3) resign from Federal employment. The letter noted that failure to make a selection could result in removal from federal service. Complainant signed the letter with the notation, "I did not select any of the options at this time." Complainant also notified CBP that he was requesting a reasonable accommodation allowing him to "work the 8:00 p.m. to 4:00 p.m. rotating 4:00 p.m. to 12:00 p.m. and working overtime and/or allow [him] to work full time as per [his] doctor's November 25, 2008 letter."
On May 13, 2009, Complainant submitted an amendment to his reasonable accommodation request. Complainant requested to be returned to full duty, working all shifts with no restrictions. Complainant also requested to be provided the opportunity to demonstrate his ability to jump over a 2-foot obstacle.
On May 21, 2009, CBP requested a medical assessment from Complainant's treating physician. On May 26, 2009, management also issued Complainant a proposal to remove him from federal service because he failed to make a selection on his option letter.
On July 8, 2010, Complainant's treating physician notified CBP that Complainant could function and work full duty as a CBPO, and that Complainant did not require an accommodation at that time. In addition, the physical therapy department confirmed that Complainant was capable of jumping over a 2 to 4 foot barrier. On July 10, 2009, Complainant and the EEO Manager discussed Complainant's reasonable accommodation request. However, On August 12, 2009, CBP denied Complainant's reasonable accommodation request. On May 31, 2010, CBP returned Complainant to full duty.
Disparate Treatment
The Agency reviewed claims 1, 2, 5 and 6 under the theory of disparate treatment. With regard to Complainant's allegations of disparate treatment, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions.
Claim 1
Specifically, with regard to claim 1, the Agency found that the Assistant Port Director (APD) explained that the vacancy announcement for the PCS position was rescinded due to the requirement that the selectees "must be fluent in the Spanish language." The APD stated that the position was not re-announced; rather, management followed a "past established practice" for selecting CBPOs interested in PCS positions. The APD explained that:
The Administrative Unit would maintain a list of employees according to seniority in the environment where they were assigned. We called it "first in, first out" list. If a position opened up in PCS, the [Supervisory CBPO (SCBPO)] would go to the first person on the list and ask if they were interested in working in PCS. If the Officer accepted, he/she would be reassigned from a Passenger Vehicle Primary to PCS. If the Officer declined then the [SCBPO] would go to the next person until he found a volunteer. This was the only practice that I am aware existed and had been executed each time there was no vacancy.
The Scheduling Officer confirmed that all of the PCS assignments were based on the "first in/first out policy and that the officers must have been working in "full duty" capacity to be eligible for assignment. The Scheduling Officer and SCBPO testified that Complainant was not considered for a PCS assignment because he was under a medical restriction that precluded him from working the full rotation, including the 4-12 shift and the midnight shift.
Claim 2
The Port Director (PD) stated that he made the decision to remove Complainant's firearm after learning that Complainant was taking medications that were opium-based. The PD testified that management was concerned that the medications could impair Complainant's judgment or ability to use a weapon; therefore, he decided to withdraw Complainant's weapon until he received clarification on the impact of the medications.
The Labor and Employee Relations Specialist (LER) stated that management placed Complainant on light duty, pursuant to CBP policy, because his authority to carry a firearm was rescinded. The LER noted that Complainant could not perform the full duties of a CBPO without his weapon.
Finally, the PD stated that management did not prevent Complainant from working overtime. The PD explained that Complainant was part of the administrative overtime pool due to his medical status. Accordingly, the PD testified that Complainant would compete with other employees in his pool for overtime opportunities.
Claim 5
Management articulated a legitimate, nondiscriminatory reason for its actions. The PD stated that management requested that Complainant submit to an IME and FCE because he had been unable to perform the duties of a CBPO for more than one year. CBP needed an independent medical evaluation to determine the likelihood of him returning to a full duty capacity as a CBPO.
Claim 6
Management stated that Complainant was issued the Option Letter because, following three medical examinations, the reviewing physician found that he was "not fit for duty."
The Agency found that with regard to all of these claims, Complainant failed to prove by the preponderance of the evidence that the Agency's proffered reasons were a pretext for discrimination. The Agency noted that Complainant believed that he was discriminated against because the Agency was trying "to image itself as a Robocop of the future now that the Agency has law enforcement status." Complainant further stated that he believed the Agency was discriminating against him because he and his doctors were "being challenged" on his physical performance. However, the Agency concluded that Complainant failed to offer any proof to substantiate his own assertions that he was discriminated against as alleged.
Reasonable Accommodation (Claim 7)
The Agency issued Complainant an Option Letter, based on the results of medical examinations that found Complainant to be unfit for duty. In response to the Agency's letter, Complainant requested the "reasonable accommodation" of being returned to full duty with no restrictions. In support of his request, Complainant asserted that he could perform all the essential functions of the CBPO position without any restrictions, and he subsequently provided medical documentation from his physician stating that he could function and work full duty as a CBPO and did not require an accommodation at that time.
The Agency found that Complainant's "reasonable accommodation" request effectively asserted that he could perform the essential functions of his position without an accommodation. Therefore, the Agency determined that Complainant's "reasonable accommodation request" did not request any specific accommodation. Rather, he intended to dispute the Agency's Option Letter and determination that he was unfit for duty. The Agency found that the record demonstrated that management acted appropriately when the Option Letter was issued to Complainant, based on the medical examinations and physician's evaluations before the Agency at that time. The Agency noted that in the May 13, 2009 "reasonable accommodation request," Complainant also asked that he be allowed to demonstrate his ability to jump over a 2-foot barrier, which was already a requirement for a CBPO to demonstrate in order to be fit for duty. Additionally, the record demonstrated that on June 2, 2009, the El Paso Orthopedic Surgery Group and Center for Sports Medicine evaluated Complainant's ability to jump over a 2 to 4-foot barrier, and confirmed that Complainant was capable of performing this job-related task. This information was subsequently provided to CBP. As such, the Agency found that it did not improperly deny Complainant's "reasonable accommodation requests."
Hostile Work Environment
The Agency also found that Complainant failed to prove that CBP subjected him to a hostile work environment. The Agency determined that nothing in the record showed that the Agency was motivated by discriminatory animus. Further, with respect to claim 3, the release of Complainant's medical information, the PD explained that information regarding Complainant's medications was revealed during a meeting wherein management discussed a number of CBPOs who were on light duty. The PD stated that the information "never left the meeting," and those who attended the meeting had a "need to know" that Complainant was on medication.
Regarding claim 4, the delay of Complainant's FFDE, the LER stated that the Agency delayed the first FFDE because Complainant included a statement on his medical release that restricted the release of some medical records. The LER explained that the physician's office informed her that the doctors and nurses scheduled to perform the FFDE would not accept the medical release with that statement. Accordingly, the LER rescheduled the FFDE in order to afford the Agency the opportunity to secure an unrestricted medical release from Complainant.
With respect to his remaining allegations, the Agency found that because Complainant failed to establish that its actions were motivated by discriminatory animus, he failed to establish that he was subjected to harassment.
The Agency also noted that Complainant did not prove that he was subjected to conduct that was sufficiently severe or pervasive enough to create a hostile work environment. The Agency opined that while management's repeated medical requests may have caused Complainant anxiety and frustration, the record demonstrates that the Agency was attempting to make a determination as to his fitness for duty amid contradictory and confusing medical information. The Agency noted that these types of interactions were the type of day-to-day events that routinely occur in the workplace.
EEOC Appeal No. 0120123133
On November 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (physical), age (50), and reprisal for prior protected EEO activity when:
9. On or about September 9, 2009, management denied Complainant's request for a reasonable accommodation;
10. On October 29, 2009, management denied Complainant certification for an award under the Foreign Language Award Program (FLAP); and
11. On November 3, 2009, management required Complainant to report to a Fitness For Duty Examination.3
The Agency dismissed claims 9 and 11. The Agency investigated claim 10 and in accordance with Complainant's request, issued a final decision finding that Complainant was not discriminated against as alleged. Complainant appealed the dismissals and the FAD to the Commission. In Ortega v. Dep't of Homeland Security, EEOC Appeal No. 0120112190 (Sept. 7, 2011), the Commission reversed the dismissal with regard to claim 9, finding that the Agency failed to demonstrate that that this claim was identical to ones raised previously in Agency Nos. HS08CBP008441; HS09CBP004727 and remanded the claim to the Agency for an investigation. The Commission affirmed the dismissal of claim 11 and affirmed the Agency's decision finding no discrimination with regard to claim 10.
At the conclusion of the investigation of claim 9, the Agency provided Complainant 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 found that assuming arguendo that Complainant established that he was a qualified individual with a disability, management determined that, based on the results of Complainant's fitness for duty examination, Complainant could not perform the essential functions of his job because he could not jump over a two-foot obstacle. As a result, management provided Complainant with options, including the option to provide updated job skills information for the Agency to conduct a search for a suitable position within the Office of Field Operations for which Complainant qualified. Instead, Complainant submitted a request for an accommodation. The EEO Manager requested that Complainant provide a medical assessment from his physician to determine whether Complainant was entitled to an accommodation. In response, Complainant provided documentation from his physician that indicated that he no longer required any accommodation and could perform all of the essential functions of his position. Complainant's physician released Complainant to full duty without any restrictions and, on May 31, 2010, CBP returned Complainant to full duty.
The Agency maintained that Complainant cut off the interactive process when he submitted documentation from his physician indicating that he no longer required a reasonable accommodation. As such, the Agency was relieved of its obligation to provide Complainant with a reasonable accommodation and therefore Complainant did not demonstrate that CBP denied him a reasonable accommodation.
The Agency also found that assuming that Complainant established a prima facie case of sex, age, disability, and reprisal discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions. Specifically, Complainant no longer required a reasonable accommodation when his physician indicated that he was physically cleared to return to full duty. The Agency found that Complainant failed to establish that the Agency's reasons were a pretext for discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed both decisions to the Commission.
CONTENTIONS ON APPEAL
EEOC Appeal No. 0120112320
Complainant argues that he established that the Agency violated the Rehabilitation Act when it disclosed his confidential medical information. Further, Complainant argues that the Agency improperly removed his firearm and failed to establish that he posed a direct threat to himself or others. Additionally, he argued that the Agency unlawfully required him to submit to multiple unnecessary FFDEs and failed to provide him with an accommodation. Complainant also asserts that he establish that he was subjected to retaliation and that he established a hostile work environment. Complainant requests that the Commission reverse the Agency's final decision and find that the Agency discriminated against him as alleged.
The Agency argues that Complainant failed to establish that he is an individual with a disability. Further, the Agency argues that Complainant is collaterally estopped from establishing that he is an individual with a disability because that issue has been previously litigated. The Agency also argues that Complainant's claim that the Agency unlawfully distributed his confidential medical information was untimely. In the event that the allegation was timely, the Agency argues that Complainant waived his confidentiality since he previously volunteered the information during other previous EEO matters. The Agency argues that in any event, it offered legitimate reasons for distributing that information. The Agency also argues that it appropriately removed Complainant's firearm because he posed a direct threat. The Agency further argues that Complainant has abused the process and failed to establish that he was discriminated against or harassed as alleged. The Agency requests that the Commission affirm the FAD.
EEOC Appeal No. 0120123133
Complainant appears to argue that the Agency discriminated against him by requiring him to be able to jump over a two-foot obstacle. Complainant argues that no other CBPO was required to complete such a task. Complainant also appears to argue that the Agency required him to attend numerous fitness-for-duty examinations. Finally, Complainant maintains that he was subjected to a hostile working environment since 2005-2006 to the present. The Agency requests that the Commission affirm the FAD finding no discrimination.
ANALYSIS AND FINDINGS
Procedural Matters
Preliminarily, we note that the allegations raised in EEOC Appeal No. 0120133133 are based on the same operative facts that were raised in EEOC Appeal No. 0120112320. As such, the Commission consolidated the appeals.
The Agency maintains that this case should be dismissed due to Complainant's abuse of process due to a "pattern over the past decade of abusing the EEO process." The Agency notes that "although admittedly lacking in numerosity, Complainant's history of EEO activity over the past decade otherwise meets the criteria constituting an "abuse of process" by the Commission."
The Agency argues that Complainant showed a "pattern of initiating the 'complaint machinery' for any matter for which he is dissatisfied." In support of its argument, the Agency argues that Complainant filed numerous appeals and complaints, presents frivolous issues, or cites similar or identical allegations." The Agency further argues that Complainant's EEO history shows that he has acted in bad faith because he applied for positions for which he was ineligible and applied even though he knew he would not get the position.
The Commission has a "strong policy in favor of preserving a complainant's EEO rights whenever possible." Wrenn v. Dep't of Veterans Affairs, EEOC Request No. 05920705 (April 1, 1993). Given this policy and our concern about protecting complainants and their rights under the EEO statutes, an agency bears a very high standard of proof ultimately to show that a complainant's actions reveal "an ulterior purpose to abuse or misuse the EEO process." MD-110 at Ch. 5, � IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal. The Agency must show evidence that somehow in filing numerous complaints a complainant specifically intended to misuse the EEO process. Compare Wiatr v. Dep't of Defense, EEOC Appeal No. 01A30752 (Feb. 25, 2004) (finding no abuse of process in the case of a complainant who filed over 40 complaints, but where the record did not show that he did so for any other reason than to put an end to alleged discrimination); with Abell v. Dep't of Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process where complainant filed 40 complaints of non-selection with no intention to take the job). Therefore, the focus of the analysis is on the totality of the individual's claims, circumstances, and intentions.
We find, however, that Complainant's complaints, while containing many issues, are not so frivolous on their face as to ban Complainant from using the EEO process. Additionally, we find that Complainant has not filed an unreasonable number of complaints. Accordingly, we decline to find that Complainant has abused the EEO process.
Collateral Estoppel
Under the doctrine of collateral estoppel, "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Jones v. Dep't of the Air Force, EEOC Appeal No. 07A10033 (June 28, 2001), request for reconsideration granted in part, EEOC Request No. 05A10979 (granting of request on issue separate from collateral estoppel) (quoting Walton v. Dep't of the Navy, EEOC Request No. 05980013) (June 17, 1999) (citations omitted).
The Commission applies the following factors in determining whether it is appropriate to apply collateral estoppel: (1) whether the present claim involves the same parties as the prior litigation; (2) whether the issue in the present claim is, in substance, the same as the issued resolved in the prior litigation, i.e., was actually and necessarily determined in the prior litigation; (3) whether controlling facts or legal principles have changed significantly since the prior judgment; and (4) whether other special circumstances warrant an exception to the normal rules of preclusion. Id. Regarding the "special circumstances" factor, the Commission has held that the appropriate inquiry is whether complainant has been granted a full and fair opportunity to litigate the issue to which collateral estoppels is to be applied.
We find that the Agency failed to establish that the doctrine of collateral estoppel applies to this case because the Agency did not establish that the issue in the present claim is, in substance, the same as the issues resolved in prior litigation, i.e., was actually and necessarily determined in the prior litigation. We note that in its brief in support of its collateral estoppel arguments, the Agency cites to prior cases raised by Complainant in other jurisdictions that ruled on Complainant's disability status. We note however that these cases predate the incidents at issue in this case. Generally, the Commission regards disability determinations on a case by case basis; Complainant therefore should not be precluded from demonstrating that, at the time of the allegations raised in this case, he was an individual with a disability. Finally, we note that none of the cases that the Agency cited in support of its position were raised to the Commission on appeal. As such, the Commission has never ruled on whether Complainant is an individual with a disability.
Disparate Treatment
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
To prevail in a case 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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions with regard to claims 1, 2, 3, 4, 5, and 6.4
With regard to claim 1, the vacancy announcement for the PCS position was rescinded due to the requirement that the selectees "must be fluent in the Spanish language." The APD stated that the position was not re-announced; rather, management followed a "past established practice" for selecting CBPOs interested in PCS positions.
With regard to claim 2, the PD stated he made the decision to remove Complainant's firearm after learning that Complainant was taking medications that were opium-based. The PD testified that management was concerned that the medications could impair Complainant's judgment or ability to operate a weapon; therefore, he decided to withdraw Complainant's weapon until he received clarification on the impact of the medications. Upon the determination that his medications would not impair his ability to carry a firearm, Complainant's firearm was returned to him because he was returned to full duty.
With regard to claim 3, the PD stated that the information regarding Complainant's medication was revealed during a meeting with the newly appointed Director of Field Operations, CBP Assistant Chief Counsel, Area EEO Director, Supervisory LER Specialist, and Director of Mission Support, which the DFO had called to discuss the 97 Officers currently on light duty at the Port of El Paso. The PD provided that he never distributed Complainant's medication information, and the letter rescinding Complainant's firearm authority only indicated in a general way that the rescission was based on the medications Complainant was taking. The PD stated that the information "never left the meeting" and those who attended the meeting had a "need to know" that Complainant was on medication.
With regard to claim 4, the LER stated that the Agency delayed the first FFDE because Complainant included a statement on his medical release that restricted the release of some medical records. The LER explained that the physician's office informed her that the doctors and nurses scheduled to perform the FFDE would not accept the medical release with that statement. Accordingly, the LER rescheduled the FFDE in order to afford the Agency the opportunity to secure an unrestricted medical release from Complainant
With regard to claim 5, the PD stated that management requested that Complainant submit to an IME and FCE because he had been unable to perform the duties of a CBPO for more than one year. CBP needed an independent medical evaluation to determine the likelihood of him returning to a full duty capacity as a CBPO. Further, we find that the request was job-related and consistent with business necessity.
With regard to claim 6 the Agency found that management stated that Complainant was issued the Option Letter because, following three medical examinations, the reviewing physician found that he was "not fit for duty."
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant failed to show that the Agency's proffered reasons were not worthy of pretext and has failed to offer any evidence that the Agency was motivated by discriminatory reasons. As such, we find that Complainant did not establish that he was discriminated against as alleged.
Reasonable Accommodation (Claims 7 and 9)
Under the Commission's regulations, an Agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). With regard to Complainant's reasonable accommodation request, we find, assuming arguendo that Complainant was a qualified individual with a disability, the Agency appropriately terminated the reasonable accommodation process upon receiving from Complainant's physician notice that he is capable of returning to the position without an accommodation. Specifically, Complainant request for reasonable accommodation was denied because Complainant submitted documentation from his physician stating that he no longer needed an accommodation and could be returned to full duty.
Harassment
With respect to Complainant's contention that he was subject to a hostile work environment we find that Complainant's claim must fail. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). We find that even including claim 8, Complainant has failed to demonstrate that the Agency's actions were motivated by discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FADs finding that Complainant failed to establish that he was discriminated as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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. 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, Director
Office of Federal Operations
_1/8/16_________________
Date
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.
2 Complainant raised claims 1 through 4 in Agency No. HS08CBP008441. Claims 5 through 8 were raised in Agency No. HS09CBP004727.
3 Complainant appears to argue on appeal that the fitness-for-duty examination and the requirement of clearing a 2 foot obstacle were part of his discrimination claim and Complainant argues he was subjected to a hostile work environment. The only accepted claim is the issue regarding the denial of a reasonable accommodation on September 9, 2009. However, we note that since the FFDE and the allegation of a hostile work environment are part of EEOC Appeal No. 0120112320 and we have consolidated the two appeals, the FFDE will be discussed infra.
4 We note that claim 8 involves receiving a letter proposing his removal. As such, the claim alone does not state a claim since it is clear from the record that he was not removed. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the Agency shall dismiss a complaint that alleges a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. However, when a proposed Agency action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, an agency may not properly dismiss it on the grounds that it alleges a proposed action is discriminatory. See Settles v. U.S. Postal Service, EEOC Request No. 05970496 (April 8, 1999). Accordingly, we will consider it as part of Complainant's harassment allegation.
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0120123133
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112320; 0120123133