Peter M. Rosenow, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMar 26, 2009
0120065175 (E.E.O.C. Mar. 26, 2009)

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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