01a53467
11-17-2005
Larry P. Edmonds, Complainant, v. Glenn L. McCullough, Jr. , Chairman, Tennessee Valley Authority, Agency.
Larry P. Edmonds v. Tennessee Valley Authority
01A53467
11-17-05
.
Larry P. Edmonds,
Complainant,
v.
Glenn L. McCullough, Jr. ,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A53467
Agency No. 0309-2004023
Hearing No. 130-2004-00213x
DECISION
On March 22, 2005, Larry P. Edmonds (complainant) filed an appeal from the
agency's final decision dated March 28, 2005, concerning his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.<1> For the reasons that follow,
the agency's decision is AFFIRMED but on different grounds than found
by the Administrative Judge.
Complainant contacted an EEO counselor on December 23, 2003, and filed
a formal complaint on March 9, 2004, claiming discrimination based on
race (white), national origin (American), disability (headaches), and in
reprisal for prior EEO activity when he was terminated effective October
24, 2003. Following an investigation, complainant requested a hearing,
and an EEOC Administrative Judge (AJ) issued a decision without a hearing
on February 11, 2005, finding that the agency did not discriminate
against complainant on any bases.
Complainant began his employment with the agency in April 2001, as a
Combustion Turbine Technician (Trainee). Beginning in January 2003,
complainant began to complain of headaches, sometimes with nausea, and
often left work, too ill to continue. Although complainant had not used
any sick leave since his hire over 18 months previous, through July 23,
2003, he had used 70.5 hours of sick leave.<2> The agency, concerned
about complainant's ability to work safely, directed him to take a
fitness-for-duty examination (FFDE). Complainant attended his FFDE, but
he refused to sign the agency's 11-point release to allow communication
between agency medical personnel and his private health care providers.
Specifically, according to his affidavit in the Report of Investigation
(ROI), complainant stated that he objected to releasing the agency "for
anything that may occur at any time because of [the FFDE];" that he was
responsible for any fees in connection with provision of his personal
records; and that it was his responsibility to ensure that all reports
were sent to the agency. (ROI, pp. 057, 062). Because he continued
to refuse to execute a release to complete his FFDE, he was terminated
for not being available for work, in that, he could not return to work
until cleared to do so by the FFDE.
The AJ found that complainant failed to establish a prima facie case on
the bases claimed. With regard to the claims based on race and national
origin, the AJ found that complainant did not show that he was treated
less favorably than any similarly situated employees. As to the claim
based on disability, the AJ found that complainant presented no evidence
about his condition. Finally, with regard to the claim based on reprisal,
the AJ rejected complainant's argument that he spoke in opposition to
the agency's failure to hire blacks, finding that no evidence supported
this claim. Further, even if complainant established a prima facie case,
the AJ found that complainant failed to demonstrate that the agency's
reasons were not true and based on animus.
Summary Judgment
The Commission's regulations provide that an AJ may issue findings and
conclusions without a hearing if �some or all material facts are not in
genuine dispute and there is no genuine issue as to credibility.� 29
C.F.R. � 1614.109(g). Summary judgment is appropriate where an AJ has
determined that, given the substantive legal and evidentiary standards
that apply to the case, no genuine issue of material fact exists.<3>
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In the
context of an administrative proceeding under Title VII, an AJ may
properly consider summary judgment only upon a determination that the
record has been adequately developed. In this matter, the AJ found that
the record was adequately developed for a decision on the record and
that no genuine issue of material fact existed. We find that issuance
of a decision without a hearing was appropriate.
Claims Based on Disparate Treatment
Claims of disparate treatment are analyzed under the tripartite
analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
A complainant 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. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department 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 reasons were 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 Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
In his decision, the AJ found that complainant failed to establish a prima
facie case on the bases of race and national origin, because complainant
did not show that he was treated less favorably than any similarly
situated employees outside of his race or national origin classes.
In fact, as stated above, complainant's obligation to establish a
prima facie case requires only that he present evidence which, if not
rebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caterers Corp.,
516 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
A prima facie case, however, is not the equivalent of a finding of
discrimination. Rather it simply shifts the burden of production to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, supra.
Assuming, arguendo, that complainant established a prima facie case
based on race and national origin, the Commission finds that the
agency successfully carried its burden to articulate a legitimate,
nondiscriminatory reason for complainant's termination, i.e., complainant
did not complete the FFDE and was unavailable for work, since he could not
return to work. Further, we find that complainant failed to demonstrate
that the explanations provided by agency officials were not true or
based on discriminatory animus.<4> Thus, we find that the agency did
not discriminate against complainant based on his race or national origin.
Claim Based on Reprisal
In a reprisal claim, following the party's burdens set forth in
McDonnell Douglas Corp. v. Green, supra, a complainant may establish
a prima facie case of reprisal by showing that: (1) s/he engaged
in a protected activity or opposed a discriminatory action; (2) the
agency was aware of his/her protected activity; (3) subsequently, s/he
was subjected to adverse treatment by the agency; and (4) a nexus, or
causal connection, exists between the protected activity and the adverse
action. See Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000); Fabish v. USPS, EEOC Appeal No. 01981273 (June 1,
2001). In the matter before us, assuming, arguendo, that complainant
established a prima facie case of reprisal, we find that he did not
demonstrate that the agency's reason for his termination was not true
or based upon a discriminatory pretext and not on the basis of his
own intervening actions. We find, therefore, that the agency did not
terminate complainant in reprisal for EEO activity.
Claim Based on Disability/FFDE
In our view, the AJ's analysis of whether complainant was an individual
with a disability is misplaced. Because complainant's claim based on
disability was a challenge to the agency's direction that he undergo
the FFDE, the question of whether complainant was an individual with a
disability was unnecessary. The limitations in the Rehabilitation Act
regarding disability-related inquiries and medical examinations apply to
all employees. See Enforcement Guidance on Disability-Related Inquiries
and Medical Examinations of Employees Under the ADA (July 27, 2000);
Enforcement Guidance on the ADA and Psychiatric Disabilities (March 25,
1997); Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the ADA (October 17, 2002). Because the restrictions on agencies
with regard to disability-related inquiries and medical examinations
apply to all employees, and not just to those with disabilities, we
need not examine whether complainant is a person with a disability.
See July 2000 Guidance, p. 3. The inquiry before us is, instead,
whether the agency's order that complainant undergo a FFD was lawful.
See 29 C.F.R. � 1630.14(c).
The Rehabilitation Act places certain restricts an employer's ability
to make disability-related inquiries or require medical examinations of
employees. The Commission has addressed this question and has stated
that an employer may require a medical examination of an employee
only if the examination is job-related and consistent with business
necessity. March 1997 Guidance, p. 15. This requirement is met when
the employer has a reasonable belief, based on objective evidence,
that (1) an employee's ability to perform essential job functions is
impaired by a medical condition; or (2) that an employee poses a direct
threat due to a medical condition.<5> See July 2000 Guidance, pp. 6-9.
Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a
medical condition that will interfere with his/her ability to perform
essential job functions or will result in direct threat. Id., p. 7.
Where the employer forms such a belief, its disability-related inquiries
and medical examinations are job-related and consistent with business
necessity, if they seek only the information necessary to determine
whether the employee can perform the essential function or work without
posing a direct threat to self or others. Id.
Turning to the matter before us, we find that the agency's reasons for
requiring complainant to undergo a FFDE were job-related and consistent
with business necessary. The agency, through the testimony of the
site manager, indicated that it was concerned about the safety of its
operations and offered the reasons for directing complainant to take the
FFDE: complainant's increased use of sick leave from January through
July 23, 2003; his failure to follow directions to cease his aggressive
and confrontational behavior towards others; his increasingly unstable
behavior; and his frequent headaches accompanied by nausea since January
2003. Based on all these factors, the agency directed him to take the
FFDE and not return to work until cleared by the agency's medical staff.
In the main, while complainant attended his FFDE and complied with
requests for information and took certain tests, he refused to sign the
agency's 11-point release to allow communication with his healthcare
providers. Specifically, according to his affidavit in the ROI, and
reiterated elsewhere in the record, complainant stated that he objected
to certain terms of the release, i.e., that he released the agency "for
anything that may occur at any time because of [the FFDE];" that he was
responsible for any fees in connection with provision of his personal
records; and that it was his responsibility to ensure that all reports
were sent to the agency. (ROI, pp. 057, 062). Because he continued to
refuse to sign the release, the agency was unable to complete his FFDE,
he was not allowed to return to work, and he was terminated for not
being available for work.
The Commission's advisements, supra, require an employer to obtain a
release from the employee before it can contact the employee's personal
healthcare providers. In this case, the complainant's failure to sign
the release prevented the agency from learning the results of the fitness
for duty exam, results they were entitled to obtain since the exam was
job-related and consistent with business necessity. The complainant's
objections to the specific items that he cited do not raise issues
addressed by the Rehabilitation Act. We find therefore that the agency
did not violate the Rehabilitation Act by requiring complainant to sign
a medical release so that it could obtain the results of the fitness
for duty exam.<6>
For all the above reasons, we find that the agency did not discriminate
against complainant on the basis of race, national origin, and reprisal
nor did the agency violate the Rehabilitation Act when it directed
complainant to take a FFDE.
CONCLUSION
Accordingly, the agency final action is AFFIRMED.
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
____11-17-05______________
Date
1For purposes of this decision, we consider complainant's appeal as
filed in a timely manner. See 29 C.F.R. � 1614.401 et seq.
2The record indicates that complainant's abrasive and confrontational
style, for which he had been disciplined previously, became more
pronounced during this period.
3A disputed issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F. 2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
4Complainant's formal complaint stated that the claim of national origin
was "Caucasian - reverse discrimination." Complainant explained further
that in the summer of 2001, his manager discriminated against him when
the manager inquired if complainant was American Indian, perceiving him
as American Indian. To the extent that complainant contended that this
misapprehension was harmful, this claim fails to state a claim under
EEO laws. See 29 C.F.R. � 1614.107(a)(1).
5A "direct threat" means a significant risk of substantial harm
that cannot be eliminated or reduced by reasonable accommodation.
29 C.F.R. �1630.2(r)(1998). Further, direct threat determinations must
be based on an individualized assessment of the individual's present
ability to safely perform the essential functions of the job, considering
a reasonable medical judgment relying on the most current medical
knowledge and/or best available objective evidence. Id. To assess
whether an employee poses a direct threat, the following factors should
be considered: (1) the duration of the risk; (2) the nature and severity
of the potential harm; (3) the likelihood that potential harm will occur;
and, (4) the imminence of the potential harm. July 2000 Guidance, fn. 39.
6While we recognize that when an agency requires an employee to undergo a
fitness-for-duty examination, medical releases may be more general than
when a request for reasonable accommodation has been made, in that, in
an FFDE, the agency is seeking an explanation for behavior rather than
information about a known impairment, nevertheless the agency's release
is very general with regard to the information sought and seems to cover
an unlimited time period.