0120161244
02-23-2018
Otto D.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Otto D.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120161244
Agency No. DLAN150208
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission"), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 3, 2016 final Agency decision ("FAD") concerning his EEO complaint of unlawful employment discrimination in violation of the Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Office Automation Clerk, GS-4, at its Distribution Susquehanna facility, in New Cumberland, Pennsylvania.
On July 9, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of reprisal for prior protected EEO activity when: 2
1. On April 20, 2015, he received a memorandum from his supervisor ("S1") requesting additional medical documentation detailing his prognosis, return to work status, and work restrictions, including whether he could return to full duty, with or without restrictions; and
2. On June 26, 2015, he received a letter proposing to remove him from his Office Automation Clerk position, due solely to his inability to perform the essential duties of the position.
Complainant suffered a serious on the job injury in 2006, which required extensive recovery time and medical procedures. Since then, Complainant received workers compensation through the Department of Labor Office of Workers Compensation ("OWCP"). In 2010, Complainant returned to work and was placed on "light duty," as an Automation Clerk, a mostly sedentary clerical position. In March 2013, Complainant initiated an EEO complaint, alleging discrimination on the bases of disability and race when his supervisor at the time asked him to open a door in a manner that exacerbated his condition. Combined with other factors, such as his office chair, this further exacerbated Complainant's condition so he had to go on leave without pay status ("LWOP") in or around June 2013, and had surgery in August 2013.
A December 20, 2013 letter to the Agency from Complainant's medical provider describes his condition post-surgery, indicating Complainant was unable to return to work. Complainant remained on LWOP status and did not provide any updated documentation concerning his condition and ability to work. Then, sometime in 2014, Complainant's department underwent a management reorganization and the East Bulk Branch Chief became Complainant's new first line supervisor ("S1"). When he became aware that Complainant was still on LWOP status after nearly two years, S1 contacted a Human Resources Specialist ("HR") about obtaining information on when or if Complainant could come back to work.
On April 20, 2015, S1 issued Complainant a Memorandum Request for Medical Documentation requesting: "(a) diagnosis of [Complainant's] condition, including the current clinical status; (b) prognosis for recovery, including plans for future treatment... (c) an explanation of the impact of the medical condition on the activities of [Complainant's] job... [and whether he could] physically perform the duties listed in [his] position description; and (d) ...any restrictions" and specific details and how long he will have the required restriction. According to S1, this was one of multiple letters sent to Complainant over a period of months.
Complainant found the April 20, 2015 Memorandum offensive and invasive, particularly because he did not know who S1 was. Complainant also believed the Memorandum was motivated by retaliation, as it was issued within days of the Agency's dismissal of his EEO Complaint, which he appealed to the Commission. On April 22, 2015, Complainant contacted an EEO counselor and initiated the instant complaint. As he was provided 15 days to respond to the Memorandum, Complainant called S1 on April 27, 2015, and explained that he would not be able to provide an accurate response until after an upcoming back surgery. S1 extended Complainant's deadline to submit the requested documentation to May 20, 2015.
Complainant was surprised when he received the June 26, 2015 "Notice of Proposed Removal," because he was still awaiting surgery. The Proposed Removal states that S1 "reasonably concluded" that Complainant was permanently unable to perform the essential functions of his position. The Proposed Removal also explained that Complainant could appeal to a "Deciding Official," who was not S1. Meanwhile, Complainant's prior EEO complaint had been docketed and was pending review by this Commission.
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 Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, both alleged discriminatory actions concern "disability-related inquiries," so to prevail, the Agency's proffered legitimate nondiscriminatory reasons must also comply with the Rehabilitation Act, which limits an employer's ability to make such inquires. The Rehabilitation Act, provides that employers may make disability-related inquires or require medical examinations of employees only if they are job-related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), 1630.14(c). "Generally, a disability-related inquiry or medical examination of an employee may be 'job related and consistent with business necessity' when an employer 'has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.'" Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000) (Enforcement Guidance on Employee Inquiries and Examinations) at 15. It is the burden of the employer to show that its disability-related inquiries and requests for examination are job- related and consistent with business necessity.
We find the Agency's legitimate nondiscriminatory reasons for issuing the April 20, 2015 Memorandum are "job related and consistent with business necessity." Regarding the Memorandum, S1 explained that he wanted to "see when or if [Complainant] would be able to return back to work." HR confirmed that this determination could not be made without up to date medical documentation from Complainant as he was receiving workers compensation.
S1 further explained that he issued the Proposed Removal "to promote the efficiency of the Federal Service," citing Complainant's 2 years of continuous absence, while his position remained unfilled. S1 also based the Proposed Removal on Complainant's most recent medical documents, dated December 20, 2013, which indicated Complainant's "officially assigned position cannot be modified to accommodate [his] medical limitations without eliminating the essential functions of [his] position."
Additionally, both the April 20, 2015 Memorandum and June 26, 2015 Proposed Removal were issued under a reasonable belief, based on objective evidence, that Complainant's ability to perform essential job functions will be impaired by a medical condition. The most recent documentation Complainant provided to the Agency, a December 20, 2013 letter from his medical provider, stated, "[Complainant] is currently on disability, as he claims he is unable to do any type of work." Given Complainant's failure to provide the Agency with the requested updated documentation, we find S1's reliance on the December 20, 2013 letter, coupled with Complainant's two years of continuous absence from work, while receiving disability payments from OWCP, sufficient objective evidence for S1 to form a reasonable belief that Complainant is unable to perform the essential functions of his job.
Complainant argues that the Agency's legitimate nondiscriminatory reasons were pretext for discrimination, because the Agency was already aware of his disability, rendering the April 20, 2015 Request and June 26, 2015 Proposed Removal unnecessary. He also notes that he regularly provided OWCP with updated medical documentation to obtain reimbursements for medical costs. Complainant insists that if they chose to do so, S1 and HR could access this information any time because they can access his OWCP files. Both HR and S1 deny such access. Regardless, Management is not precluded from requesting updated documentation for purposes of business necessity simply because Complainant submitted the same or similar information to another Agency for an unrelated administrative process.
Finally, to the extent that Complainant is claiming that he was entitled to have his job held opened indefinitely as a reasonable accommodation, we conclude that in the circumstances presented here, the Agency has established that to do so would present an undue hardship. The Agency had already held Complainant's job for him for two years of continuous absence from work, and his most recent medical information indicated his position could not be modified to allow him to perform its essential functions. Moreover, reassignment was not available as Complainant's medical information indicated he was unable "to do any type of work."
CONCLUSION
Therefore, having thoroughly reviewed the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant has not established that he was subjected to discrimination as alleged.
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.
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. 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
February 23, 2018
__________________
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 cites his EEO activity associated with Agency No. DLAN13097; which was investigated by the Agency and pending appeal during the relevant time frame for this complaint. See EEOC Appeal Nos. 0120141071 (May 23, 2014) & 0120151883 (Mar. 20, 2017).
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