01A11176
03-25-2003
Mark F. Freese, Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Mark F. Freese v. Office of Personnel Management
01A11176
March 25, 2003
.
Mark F. Freese,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A11176
Agency No. 0016
DECISION
Mark F. Freese (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his 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. For the following
reasons, the Commission VACATES and REMANDS the agency's final decision.
The record reveals that during the relevant time, complainant was
an applicant for employment at the Chandler, Arizona facility of
the United States Postal Service (USPS). Complainant applied for
a position as a Part-time Flexible Distribution Clerk, but the USPS
�tentatively found him to be medically unable to perform the duties� of
the position. The USPS noted that because complainant was a veteran
with a service-connected disability of 30% or more, his case would be
automatically reviewed by the Office of Personnel Management (OPM or the
agency). The agency reviewed complainant's medical records and upheld
USPS's decision that complainant was not qualified for the position
because of a medical condition. Complainant sought EEO counseling,
and subsequently filed a formal complaint on February 9, 2000, alleging
that he was discriminated against on the basis of disability (bi-polar
disorder) when he was found to be medically unsuitable for the position
of Part-time Flexible Distribution Clerk.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant was informed of his right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision.
In its FAD, the agency noted that the Medical Policy and Program
Specialist (MPPS) was responsible for determining if USPS was in
compliance with laws and personnel policies regarding medical and
suitability disqualifications. MPPS testified that he reviewed the
medical information provided by USPS and that the �most considerable�
document on which he based his determination was a letter from a USPS
board-certified physician in occupational medicine (AP1). MPPS testified
that AP1's medical report, dated August 24, 1999, consolidated all of
the medical information in the file, including a note from complainant's
doctor, and concluded that complainant was �unable to perform all of the
requirements of [the] job now and in the future.�<1> After reviewing the
information provided by USPS, MPPS upheld the decision that complainant
was not qualified for the position because of his medical condition. The
agency concluded that it did not discriminate against complainant.
On appeal, complainant raises a number of contentions. He argues that
USPS and OPM discriminated against him because of his disability and
that absent that discrimination, he would have been working for USPS
since May 1999.
After a careful review of the record, we find that we are unable to render
a decision on this complaint due to the inadequacy of the investigative
report. The agency is required to develop an impartial and appropriate
factual record upon which to make findings on the claims raised by the
written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual
record is one that allows a reasonable fact finder to draw conclusions
as to whether discrimination occurred. Id. In the case at hand,
OPM acknowledged that its decision to uphold USPS's determination
that complainant was not qualified for the position due to his medical
condition was based, in large part, on a August 24, 1999 letter from
AP1, the USPS board-certified physician in occupational medicine.
Yet OPM failed to include this letter in the Report of Investigation
(ROI). Similarly, a review of the record establishes that during the
medical assessment process conducted by USPS, complainant filled out
a medical questionnaire containing approximately 75 questions and was
subsequently sent for a �focus exam� with a second doctor (AP2). Although
the record indicates that OPM reviewed the entire medical file in making
its determination, the medical assessment questionnaire is also missing
from the ROI. Furthermore, it is clear that complainant advised the
agency of the inadequacy of the record on which it made its decision
when he notified the investigator that he believed from MPPS's affidavit
that MPPS did not have all of the necessary medical documentation when
he made his determination.
In a case alleging disability-based discrimination, complainant
must, as a threshold matter, establish that he/she is a �qualified
individual with disability� within the meaning of the Rehabilitation Act.
An "individual with a disability" is one 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). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). A "qualified" individual with a disability is one
who satisfies the requirements for the employment position he/she holds
or desires and can perform the essential functions of that position
with or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
The Supreme Court has held that the determination of whether a person is
an "individual with a disability" must be based on his or her condition
at the time of the alleged discrimination. The positive and negative
effects of mitigating measures used by the individual, such as medication
or an assistive device, must be considered when deciding if he or she
has an impairment that substantially limits a major life activity.
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999).
Although it is complainant's burden to establish that he is covered by
the Rehabilitation Act, it is clear from the record that complainant
provided more medical information than that which is currently in
the ROI. Moreover, it appears from what is present in the record, that
complainant has a colorable claim that he is a qualified individual with
a disability under at least one of the three prongs described above and
that he was not hired because of his membership in this protected class.
We are unable to determine if this is the case, however, without the
medical documentation that USPS and OPM relied on in determining that
complainant was not qualified for the position of Distribution Clerk
due to his medical condition.
We further note that complainant was denied employment as a
Distribution Clerk as the result of decisions made both by OPM and USPS.
Accordingly, implementation of any remedy to be provided in this case
would necessarily require the participation of both USPS and OPM.
It is the policy of the Commission that, when two agencies bear joint
responsibility for an act of alleged discrimination, both agencies
are proper respondents and the complaint must be jointly processed.
See Velez v. Department of Veterans Affairs & Department of the Air Force,
EEOC Appeal No. 01961480 (February 6, 1997). This policy ensures that
all agencies that are indispensable parties to the adjudication of a
complaint are joined.
Consequently, after a careful review of the entire record, we vacate
the agency's final order and remand this complaint for a supplemental
investigation in accordance with this decision and the ORDER below.
We further notify USPS by this decision of its joinder as a party to
the matter.
ORDER
OPM and USPS are ORDERED to take the following actions:
1. OPM shall contact USPS and inform it of the provisions of this order.
The agencies shall jointly process complainant's complaint, as described
in detail below. Within thirty (30) calendar days of the date this
decision becomes final, both agencies shall acknowledge to complainant
that they have received the remanded complaint. In jointly processing
this case, the agencies shall conduct a supplemental investigation which
shall include, at a minimum, the actions described below.
2. The agencies shall ensure that a copy of the August 24, 1999 letter
from the USPS board-certified physician in occupational medicine (AP1)
is included in the record.
3. The agencies shall ensure that a copy of the medical assessment
questionnaire referenced in the affidavit labeled Exhibit 9 of the
original ROI is included in the record.
4. The agencies shall ensure that any other medical documentation and/or
questionnaires used by USPS or OPM in determining that complainant was
not medically qualified for the position in question are included in
the record.
5. The agencies shall ensure that affidavits of AP1 (the author of
the August 24, 1999 letter on which OPM relied) and AP2 (the doctor
who provided the information on Form 2485) are included in the record.
These affidavits shall include, at a minimum, information concerning
each doctor's opinion regarding complainant's medical condition and its
impact on his ability to perform the position in question, as well as a
description of the information on which each doctor relied in reaching
that conclusion.
6. The agencies shall ensure that any other affidavits or records not
specifically requested in this ORDER, and not inconsistent with this
opinion, which may be relevant in determining whether complainant was
subjected to disability-based discrimination when he was not hired for
the position of Part-time Flexible Distribution Clerk, are included in
the record.
7. The agencies shall ensure that the supplemental investigation is
completed within one hundred and fifty (150) calendar days of the date
this decision becomes final. The agencies shall then immediately issue
to complainant a copy of the supplemented investigative file and shall
also notify complainant of the appropriate rights. If complainant
requests a final decision without a hearing, the agencies shall issue
a joint final decision within sixty (60) calendar days of receipt of
complainant's request.
8. A copy of the agencies' letter(s) of acknowledgment to complainant
and a copy of the notice that transmits the investigative file and notice
of rights must be sent to the Compliance officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 25, 2003
Date
1 MPPS provided this quote from AP1's letter
in his supplemental affidavit.