0120065175
03-26-2009
Peter M. Rosenow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Peter M. Rosenow,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120065175
(formerly 01A65175)
Agency No. 4G-720-0057-06
DECISION
On September 9, 2006, complainant filed an appeal from the agency's August
8, 2006, final decision 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
On March 31, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of disability (regarded as disabled
due to high blood pressure) when, on February 7, 2006, he received a
letter stating that information received as a part of his record showed
a basis for his medical disqualification for employment consideration;
and on February 22, 2006, he received notification that he would not
be eligible to work at the Postal Service due to erratic behavior which
had been reported by someone in human resources.
At the conclusion of the investigation, complainant was provided 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) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
The FAD found that based on the record evidence, it must be concluded
that complainant has not met the burden of establishing a prima facie
case of discrimination because he neither established that he has
an impairment that substantially limits a major life activity, nor
that he was regarded as having such impairment. The FAD then assumed,
arguendo, that complainant met his prima facie case of discrimination,
and found that the agency has articulated a legitimate, nondiscriminatory
explanation for its actions. Specifically, the FAD found as follows:
The Occupational Health Nurse Administrator (NA) testified that on
February 2, 2006, complainant indicated "Yes" to question #10 on
the Medical History Questionnaire booklet that asked if he had high
blood pressure. NA stated that when she asked complainant why he did
not take medication for his high blood pressure, he stated, "I just
don't take medications." NA attested that as she continued with the
interview about his blood pressure complainant became very agitated
and uncooperative. She further noted that complainant was sweating
profusely and became very red-faced. NA further stated that when she
asked to take complainant's blood pressure, he very abruptly replied,
"Why do you need to do that?" and "What will that prove?" NA attested
that after determining that complainant's blood pressure was 180/108
(and that it had been untreated since 2000, according to complainant), she
told him that he would need to get a focused assessment of his condition.
She explained that this is routinely done any time an applicant discloses
a medical condition that poses a potential safety risk. NA stated that
the assessment revealed severe hypertension (blood pressure 240/1301),
and that complainant was instructed to contact his personal physician
immediately for follow-up care and a treatment plan. NA testified
that she notified the Personnel Specialist (PS) of her findings.
NA additionally attested that if complainant had followed through on
the recommendations given to him by the individuals who performed the
focused assessment, and received a release from his personal physician,
his risk assessment would likely have been lowered so that he could have
been further considered for Postal Service employment.
The FAD further found as follows: NA additionally testified that she
contacted the Postal Inspectors with her concerns about complainant's
erratic behavior during the pre-employment physical. She affirmed that
complainant was displaying anger and uncooperativeness, using a loud tone
of voice, becoming red-faced and pacing around the waiting area. She also
stated that while at the Medical Center, complainant complained repeatedly
in a loud, angry tone that he had been sent there by mistake and that
he was getting the "run around." She added that he made repeated angry
phone calls to Personnel, to the Medical Office, and to the Postmaster
of Cabot, Arkansas. NA stated that she is aware that complainant was
denied employment based upon his behavior, but that she was not involved
in this decision.
The FAD additionally noted that the Manager of Human Resources (HR)
testified that the letter sent to complainant on February 7, 2006, is
a standard letter used any time an applicant is rated moderate or high
risk, so that the applicant can provide additional medical documentation.
HR stated that the decision not to hire complainant was not based upon
his medical condition. HR attested that he made the decision not to
hire complainant after hearing reports of his unprofessional behavior
from both his staff and field personnel. The FAD ultimately concluded
that the record evidence does not support a finding that the agency's
actions were motivated by disability-based discriminatory animus.
On appeal, complainant explains that he never claimed to be disabled, but
that he was regarded as disabled by agency officials. He further contends
that the agency's decision not to hire him was based on myth, fear, or
stereotyping. Complainant reiterates his version of the facts, noting,
in particular, that although he was upset when he left NA's office, at
no time did he ever threaten, curse or say anything inappropriate to NA.
He also states that NA lied (as she has many times in this record) when
she stated that if he had complied with certain requests, that he would
have been placed back on the hire list. In response, the agency urges
the Commission to sustain its final decision.
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 EEOC Management
Directive 110, 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").
Initially, after a review of the record, we find that the medical
examinations to which complainant was subjected in this case were lawful,
as an offer of employment had already been extended to complainant when
they took place, but complainant had not yet begun working. See EEOC
Enforcement Guidance on Disability Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
No. 915.002 (July 26, 2000). Further, complainant does not allege that
he was singled-out and/or required to complete the Medical Questionnaire,
which is not also required of all entering employees in the same job
category. See id., at 4.
Next, a review of this record indicates that when the agency sent
complainant a letter on February 7, 2006, the agency was proposing
to take action against complainant. See 29 C.F.R. � 1614.107(a)(5).
The letter notified him that a basis for medical disqualification had been
identified, and that within 15 days from the date of the letter, he could
provide additional medical or other relevant information to substantiate
that he could perform the functional requirements of the position.
The letter noted that the agency considers the best evidence to be the
objective medical findings from a board certified specialist that deals
with his particular problem. As this letter was merely a proposed action,
it did not create a direct and personal deprivation which would render
complainant "aggrieved" employee within the meaning of EEO Regulations.2
We now turn to addressing issue (2). The allocation of burdens and
order of presentation of proof in a Rehabilitation Act case alleging
disparate treatment discrimination is a three step procedure: complainant
has the initial burden of proving, by a preponderance of the evidence,
a prima facie case of discrimination; the burden then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for its
challenged action; and complainant must then prove, by a preponderance of
the evidence, that the legitimate reason offered by the employer was not
its true reason, but was a pretext for discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Here, we will assume arguendo that complainant can establish coverage
under the Rehabilitation Act. The agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, complainant was
notified on February 22, 2006, that he would no longer be considered for
employment because of his alleged erratic behavior with agency personnel
as they attempted to obtain more information about his blood pressure.
Although complainant denies that his behavior was threatening in any way
or as poor as the agency suggests, he admits that he was very upset at
the time because he was being perceived as disabled because of his high
blood pressure when he was perfectly able to do the job. Complainant has
not persuaded the Commission, by a preponderance of the evidence that
the agency's reasons for issuing him a letter on February 22, 2006,
indicating that he would no longer be considered for employment at the
Postal Service, was motivated by discriminatory animus. In so finding,
we note that we do not have the benefit of an Administrative Judge's
findings after a hearing, and therefore, we can only evaluate the facts
based on the weight of the evidence presented to us. After a careful
review of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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 26, 2009
__________________
Date
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of
Federal Operations Robbie Dix III, Acting Director, Appellate
Review Programs FROM: Emily Stephenson, Attorney ES March 23, 2009
Amelia Demopulos, Supervisor Robbie Dix III, Division
Director Appeal Number(s) 0120065175 Agency Number(s) 4G-720-0057-06
Hearing Number(s) Complainant(s): Peter M. Rosenow Agency: USPS
Decision: Affirmed Statute(s) Alleged Rehab Act Basis(es) Alleged Z4 -
Regarded as disabled Issue(s) Alleged H2 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits
decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
X 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
X 4F - Agency found no discrimination
X 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of agency's merits
Decision (NOTE: Do not use 3L with a
4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
? 4L - AJ found no discrimination
? 4M - AJ made no finding ? 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed
Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Peter M. Rosenow USPS
0120065175
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken None
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken None
CLASS ACTION CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken None
Emily Stephenson March 23, 2009
Attorney Date
1 As complainant correctly points out, in certain places in this record,
his blood pressure was also identified as 230/140.
2 It is clear that this was not a final action since the record shows
that the agency continued to consider/process complainant for employment
until February 22, 2006, when he was finally disqualified because of
his alleged behavior as discussed further below. Complainant himself
states that he began to gather medical documentation (at great expense to
himself), subsequent to receiving the February 7, 2006 letter, according
to the letter's instructions.
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0120065175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120065175
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