Merle S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 14, 2018

0120160060 (E.E.O.C. Sep. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Merle S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120160060

Hearing No. 550-2013-00213X

Agency No. DLAN-13-0008

DECISION

On September 15, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 17, 2015, final action concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
as a Distribution Process Worker at the Agency’s Distribution, San Joaquin facility in Tracy,
California. On January 6, 2013, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of his disability (right shoulder) when it withdrew
a tentative job offer to serve as a Distribution Process Worker.2

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 In his formal complaint, Complainant also claimed that he had been discriminated against on the
bases of his age (55) and sex (male). However, Complainant withdrew these bases during the
investigation.
0120160060

2

At the conclusion of the 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. The AJ held a hearing on May 19-20, 2015, at
which six witnesses testified, and issued a decision on July 16, 2015.

The AJ found that no discrimination occurred. The record reflects that Complainant was an
applicant for a Distribution Process Worker position. Complainant was extended an offer for the
position that was contingent upon his successful completion of a medical assessment. The AJ
stated that the core functions, responsibilities and duties of the position included handling,
stacking, retrieving, packaging materials; unloading shipments; assembling items and materials
for shipment and loading them onto conveyances, including conveyor belts; operating one or more
types of material handling equipment, including standard type forklifts with a lifting capacity of
up to 25,000 pounds, warehouse tractors, and general purpose vehicles; and stowing/selecting issue
in carousels up to seven feet.

The AJ noted that due to prior shoulder injuries and multiple surgeries, Complainant was restricted
by his physician from performing manual tasks which required repeated overhead reaching.
According to the physician, Complainant could not engage in overhead reaching except
periodically and not on a long term or constant basis. The physician issued Complainant a
disability rating of 18%.

Complainant suffered from chronic pain syndrome in his right shoulder. As a result, he took two
to four ten-milligram pills under the brand name of Norco, which is a combination of hydrocodone
and acetaminophen. The AJ noted that the Agency physician testified that the dosage taken was
the most potent amount of the narcotic, and that the inconsistent and variable manner in which it
was administered and ingested by Complainant rendered him particularly impaired. The Agency
physician maintained that the way Complainant took the drug caused peaks and valleys that could
impair performance and present a safety hazard. The Agency Physician Assistant testified that
Complainant could not perform safety sensitive work on mechanized conveyor belts and material
handling equipment such as forklifts.

The AJ observed that the Distribution Process Manager testified that a Process Worker needed to
be able to operate material handling equipment, to work with the conveyances, to operate hand
tools and conveyor belts, and to drive material handling equipment, including forklifts, for as long
as a day at a time in order to pick up and move items such as airplane or ship propellers weighing
as much as 15,000 pounds. The AJ noted that the Distribution Process Manager stated in his
affidavit that that the manual task of repetitive overhead reaching could be required for a period of
up to eight hours and if the employee was unable to perform overhead reaching on an ongoing
basis, they would have to be replaced.

The AJ observed that Complainant’s physician testified that although Complainant had become
dependent on the hydrocodone, he believed that Complainant had developed a tolerance.
0120160060

3
The physician testified that Complainant had worked in similar jobs apparently without a safety-
related incident. The physician acknowledged that he had attempted unsuccessfully to wean
Complainant from the medication. The AJ stated that the Agency withdrew its job offer to
Complainant after its medical staff concluded that Complainant was unable to perform the essential
functions of the position.

The AJ noted that a contract worker who had worked in the Distribution warehouse testified that
stools were easily available to enable employees to avoid reaching over their heads. The contract
worker also testified that turret lifts were available to lift workers hydraulically to access and store
items in high places. Another witness was a contracting officer who testified that warehouse
employees were at times instructed to rely on stools to reach for items and to avoid reaching over
their heads. The AJ noted that this witness stated that stools were strategically located throughout
the areas where they were needed.

The AJ found that the testimony from the Agency physician and the Physician Assistant was
credible as to Complainant’s physical limitations. The AJ also found testimony from the
Distribution Process Manager credible as to the core duties of the Process Worker position and his
belief that Complainant would need to be replaced if he could not engage in repetitive overhead
reaching. Based on these findings, the AJ found that due to Complainant’s significantly limited
overhead reaching ability, he was unable to perform the essential functions of the Process Worker
position. However, the AJ observed that an interactive process had not been undertaken and, had
that process been followed, the Agency would have been able to meet Complainant’s needs with
regard to performing the overhead reaching aspects of the position without incurring an
unreasonable burden. The AJ pointed out the availability of stools and mechanized turret
equipment. The AJ reminded the Agency that it had a duty to seek to provide a reasonable
accommodation.

With regard to Complainant’s dependency on hydrocodone, the AJ found the Agency physician’s
testimony credible that Complainant was taking a high dose narcotic that is known to impair his
function on a variable basis and that Complainant presents a safety hazard. The AJ noted that both
the Agency physician and the Physician Assistant determined that Complainant’s dependence on
the medication precluded him from operating conveyor belts and material handling equipment like
forklifts, which were essential functions of the Process Worker position. In contrast, the AJ found
that the testimony from Complainant’s physician was not credible. The AJ rejected this
physician’s belief that Complainant had developed a tolerance to the medication in light of the
potent nature and strong and variable dosage of the narcotic as taken by Complainant. The AJ
stated that there was no evidence in the record that applicants for Process Worker jobs, similarly
situated to Complainant, were hired by the Agency, notwithstanding their similar drug
dependencies, and Complainant offered no such evidence.

The Agency subsequently issued a final action adopting the AJ’s finding that Complainant failed
to prove that it subjected him to discrimination as alleged.

0120160060

4
CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to conduct an individualized assessment
of the risk posed by his medication use. Complainant states that the Agency declared that it was
not safe for him to operate a forklift or other machinery, even though he had been doing so for a
long period of time without any problems. Complainant points out that neither the Agency
physician nor the Physician Assistant spoke to his current supervisor or any past supervisor about
the effects of the medication on his ability to perform his duties or in particular, to operate
machinery and a forklift. Complainant states that the Agency physician decided against him
without meeting or examining him or speaking with his physician. Complainant notes that when
he worked for the Agency in 2011, the Physician Assistant determined and the Agency physician
concurred that even though he was taking a high strength narcotic medication, he appeared to be
well-adjusted to the medication and not a safety risk.

Complainant challenges the AJ’s credibility determination regarding each physician, noting that
the Agency physician had never met or treated him, whereas his physician had been treating him
since 1991 and testified that he had developed a tolerance to the pain medication and that it did
not affect his ability to function, his mental state, or his ability to safely drive a forklift.

In response, the Agency asserts there is substantial evidence supporting the AJ’s finding that
Complainant was not qualified for the position due to his restrictions against repetitive overhead
lifting. The Agency maintains that the AJ properly afforded the Distribution Process Manager’s
testimony the most credibility because he was the supervisor in charge of the work area where
Complainant would be working. The Agency states that he testified that Process Workers must be
able to stow and retrieve stored items high above the head on an ongoing basis, up to eight hours
at a time. The Agency maintains that its facility where Complainant worked as a contractor was
mostly floor-loaded and did not require as much overhead reaching as the different facility where
the position at issue was located. The Agency points out that Complainant’s shoulder condition
has become progressively worse. The Agency states that Complainant’s physician assessed
Complainant’s disability rating at 3% in 2008 but it had increased to 18% by the time of the
relevant hiring process.

With respect to Complainant’s drug dependence, the Agency asserts that its physician did perform
an individualized assessment of Complainant. The Agency maintains that the clinic personally
assessed Complainant with medical surveillance exams on at least three separate occasions and
that the physician reviewed the medical history from Complainant’s physician. The Agency
argues that its physician provided consistent testimony that the variability and inconsistency in the
manner Complainant ingested a potent combination of hydrocodone and acetaminophen impaired
performance.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record.
0120160060

5
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Complainant maintains that the Agency’s withdrawal of its employment offer constituted a denial
of reasonable accommodation. In order to establish that he was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a
qualified individual with a disability; and (3) the Agency failed to provide a reasonable
accommodation. An Agency is required to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified employee with a disability, unless it can
demonstrate that the accommodation would impose an undue hardship on the operation of its
business. 29 C.F.R. § 1630.9.

The term “reasonable accommodation” means modifications or adjustments to the work
environment, or to the manner or circumstances under which the position held is customarily
performed, that enable an individual with a disability who is qualified to perform the essential
functions of that position. 29 C.F.R. § 1630.2(o)(1). When an individual decides to request
accommodation, he must let the agency know that he needs an adjustment or change at work for a
reason related to his medical condition. A health professional may request a reasonable
accommodation on behalf of an individual with a disability. It is a reasonable accommodation to
modify a workplace policy when necessitated by an individual’s disability-related limitations,
absent undue hardship.

The term “undue hardship” means, with respect to the provision of an accommodation, significant
difficulty or expense incurred by an agency. 29 C.F.R. § 1630.2(p)(1). Generalized conclusions
will not suffice to support a claim of undue hardship, instead, undue hardship must be based on an
individualized assessment of current circumstances that show that a specific reasonable
accommodation would cause significant difficulty or expenses. Reasonable Accommodation
Guidance, Undue Hardship Issues.

In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, a
complainant must demonstrate that: (1) he is an “individual with a disability,” (2) he is “qualified”
for the position held or desired, i.e., can perform the essential functions of the position with or
without accommodation; (3) he was subjected to an adverse action because of his disability; and
(4) the circumstances surrounding the adverse action give rise to an inference of discrimination.
0120160060

6
See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program,
198 F. 2d 68 (2nd Cir 1999); Swanks v. WMATA, 179 F. 3rd 929, 93-34 (D.C. Cir 1999); Lawson
v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).

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. See 29 C.F.R. § 1630.2(g) (1)-(3). Major life activities
include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working. 29 C.F.R. § 1630.2(i). The term “substantially limits”
means: unable to perform a major life activity that the average person in the general population
can perform; or significantly restricted as to the condition, manner or duration under which an
individual can perform a particular major life activity as compared to the condition, manner, or
duration under which the average person in the general population can perform that same major
life activity. 29 C.F.R. § 1630.2(j)(1).

Determinations regarding whether a complainant is an individual with a disability must be made
on a case-by-case basis. See Bragdon v. Abbott, 524 U.S. 624, 641-642 (1998). Therefore,
complainant cannot be considered an individual with a disability per se, simply because he has
been diagnosed with a certain condition. See Albertsons, Inc. v Kirkingburg, 527 U.S. 555, 565-
566 (1999) (requiring analysis of substantial limitation for individual with monocular vision);
Murphy v. United Parcel Service, 527 U.S. 516, 521-523 (1999) (requiring analysis of substantial
limitation for individual diagnosed with severe hypertension); Sutton v. United Airlines, 527 U.S.
471, 483 (1999) (requiring analysis of substantial limitation for two individuals who were legally
blind without corrective lenses).

The AJ noted that the parties agreed that, due to his prior shoulder injuries in 2002, 2004 and 2007,
and multiple surgeries, two on his right shoulder and one on his left shoulder, Complainant was
restricted by his physician from performing manual tasks which required repeated overhead
reaching. Complainant’s physician testified that Complainant could not engage in overhead
reaching except periodically and not on a long term or constant basis. Complainant also suffered
from chronic pain syndrome in his right shoulder. The Agency received a letter dated April 24,
2012, from Complainant’s physician wherein the physician assigned Complainant an 18%
disability rating, which reflected an increase from the three percent disability rating issued in 2008.
We find that Complainant is an individual with a disability in light of the limitations and pain
Complainant experiences in a working capacity when performing certain manual tasks.

The next inquiry is whether Complainant is a “qualified individual with a disability.” 29 C.F.R.
§ 1630.2(m). A “qualified individual with a disability” is one who satisfies the requisite skill,
experience, education and other job-related requirements of the employment position and who,
with or without reasonable accommodation, can perform the essential functions of the position.
Id. The Rehabilitation Act prohibits a covered entity from engaging in discrimination against a
qualified individual on the basis of disability in, among other things, hiring. 42 U.S.C. § 12112(a).

0120160060

7
In determining whether an individual is qualified, an agency may require as a qualification
standard that an individual not pose a direct threat to the health and safety of himself or others.
Interpretative Guidance of Title 1 of the Americans with Disabilities Act, Appendix to 29 C.F.R.
Part 1630, 1630.2(r). With regard to safety requirements that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities, an employer must
demonstrate that the requirement is job-related and consistent with business necessity. The
regulations provide that an agency can meet this standard by showing that the requirement, as
applied to the individual, satisfies the “direct threat” analysis set forth in 29 C.F.R. § 1630.2(r); 29
C.F.R. § 1630 App. 1630.15(b) and (c); Nathan v. Department of Justice, EEOC Appeal No.
0720070014 (July 19, 2013). A person is a “direct threat” if he or she poses a significant risk of
substantial harm to the health or safety of him or herself or others which cannot be eliminated or
reduced to an acceptable level by reasonable accommodation. 29 C.F.R. § 1630.2(r). The “direct
threat” evaluation must be based on an individualized assessment of the individual’s present ability
to perform the essential functions of the job. Id. If no such accommodation exists, the agency
may refuse to hire an applicant. Id.

Complainant asserts that he can perform the duties of a Distribution Process Worker and the
Agency maintains that he cannot in light of his restrictions on overhead reaching and the safety
hazard posed by his dependency on a potent narcotic. The record reflects that Complainant’s
physician stated that Complainant could not engage in overhead reaching except periodically and
not on a long term or constant basis. The Distribution Process Manager asserted that repetitive
overhead reaching could be required for an extended period of time during a workday. However,
testimony established that Complainant could potentially be accommodated in light of the presence
of stools he could stand on as well as turret lifts in the warehouse. We agree with the AJ and find
that the Agency failed to provide Complainant a reasonable accommodation when it failed to
engage in the interactive process with regard to accommodating Complainant’s overhead reaching
limitations. The Agency withdrew the tentative employment offer to Complainant despite the fact
that he could have stood on stools and utilized turret lifts to negate the obstacle of overhead
repetitive lifting.

In order to exclude an individual on the basis of future possible injury, the Agency must show
there is a significant risk, i.e., a high probability of substantial harm, a speculative or remote risk
is insufficient. The Agency must show more than that an individual with a disability seeking
employment stands some slightly increased risk of harm. The burden of showing a significant risk
is on the Agency. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16,
2000).

Moreover, such a finding must be based on an individualized assessment of the individual that
takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm;
(3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
29 C.F.R. 1630.2(r); Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002). A determination of
significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases
of a most apparent nature, merely on medical reports.
0120160060

8
Rather, the Agency must gather information and base its decision on substantial information
regarding the individual’s work and medical history. Chevron U.S.A. v. Echazabal, supra;
Harrison v. Department of Justice, EEOC Appeal No. 01A03948 (July 30, 2003); Nathan v.
Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013) (finding that as part of its
individualized assessment, the agency should examine adaptive behaviors and prior work
experience).

The Agency also cited Complainant’s habitual use of the narcotic as a further reason to withdraw
Complainant’s tentative offer of employment. Specifically, with regard to Complainant’s use of
hydrocodone, the AJ found the testimony of the Agency physician to be “highly credible and
convincing” whereas the AJ specifically found the testimony of Complainant’s physician not to be
credible. The AJ found that with respect to Complainant’s dependence on the drug, the Agency
was correct in its determination that Complainant was unable to safely perform the essential
functions of the Distribution Process Worker. The AJ concluded that Complainant did not
demonstrate that he was treated less favorably than a person not within his protected group, or that
the Agency failed to make a needed reasonable accommodation for his drug usage, resulting in
adverse treatment. We find that contrary to Complainant’s claims, the Agency physician did
perform an individualized assessment of Complainant. The Agency maintains that the clinic
personally assessed Complainant with medical surveillance exams on at least three separate
occasions and that the physician reviewed the medical history from Complainant’s physician. We
find that the AJ’s conclusions and credibility determinations were supported by substantial
evidence and should not be disturbed on appeal.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision implementing the Administrative Judge’s decision because the
preponderance of the evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
0120160060

9
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.

0120160060

10
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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 14, 2018
Date