[Redacted], Morton P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 6, 2021

Appeal No. 2020001337 (E.E.O.C. Jul. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Morton P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001337 Hearing No. 410-2018-00066X Agency No. 4K-300-0055-17 DECISION On November 26, 2019, 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 October 24, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian, PS-04/O, at the Agency’s Atlanta Processing and Distribution Center in Atlanta, Georgia. On April 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (retinitis pigmentosa) and in reprisal for prior protected EEO activity when: 1. On December 14, 2016, Complainant was notified that, as a result of an August 12, 2016 Fitness for Duty (FFD) examination, he was found not fit for duty; 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. 2020001337 2 2. From November 19, 2016 to December 30, 2016, he was denied overtime;2 3. On March 24, 2017, he was scheduled for an FFD examination on April 13, 2017. Complainant entered duty with the Agency in February 2001. Complainant has a vision impairment. His position required that he pull trash, sweep floors, dust mop the aisles, clean restrooms and breakrooms, wax floors, landscape, and dump trash. Complainant stated that he could perform the duties of his position other than driving and lifting heavy equipment. In addition, the record indicates that Complainant was not capable of recognizing basic colors or working around moving objects and machinery. In March 2016, management referred Complainant to the District Reasonable Accommodation Committee (DRAC) because he was observed holding onto walls and bumping into other employees. Complainant did not appear at a DRAC meeting scheduled in May 2016, because he believed he was already being accommodated. In late May 2016, Complainant began working under a new supervisor. Shortly thereafter, on June 20, 2016, he requested that management provide his job assignments in large print. Complainant’s supervisor granted his reasonable accommodation request, but later had concerns that he was unable to perform the duties of his position. Complainant was directed to go for a Fitness for Duty examination (FFD). Complainant underwent the FFD on August 12, 2016, after which the Agency’s examining physician determined that Complainant was not fit for duty. Report of Investigation (ROI) p. 143, 223-226. The examination found that Complainant’s vision level was below what was acceptable for his position. ROI, p. 228. Complainant submitted documentation from his physician which stated that Complainant was able to work as a custodian as long as he did not drive or lift heavy equipment. ROI, p. 144. On December 14, 2016, the Agency notified Complainant that it determined he was not fit for duty and placed him in a Leave Without Pay (LWOP) status. ROI, p. 145. One management witness, the Supervisor of Maintenance Operations, averred Complainant “could not clean properly, bumped into people, and posed a safety issue because there were near misses when employees driving powered equipment (like a tram, forklift, etc.) did not know about his vision and would be expecting him to move out of the way when they were coming.” ROI, p. 199, paragraph 7. On March 24, 2017, the Agency requested a second FFD examination due to conflicting medical documentation from the last FFD and Complainant's medical providers. On April 3, 2017, Complainant underwent the second FFD. That FFD concluded that Complainant was not medically qualified to work due to his poor vision. After 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 (AJ). 2 Complainant withdrew this second claim. 2020001337 3 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. On appeal, Complainant asserted that summary judgment was improperly granted because there were material facts in dispute. Complainant maintains the Agency did not have a legitimate reason to require him to submit to the initial August 12, 2016 FFD examination, because he was not a threat to himself or others. Complainant also asserts that the Agency had no reason to discontinue the accommodation that was already in place for him. That accommodation did not require him to drive or lift heavy equipment. In response, the Agency contends that Complainant was sent for the FFD examinations, because management was concerned for his safety and that of other employees, and it took appropriate action, based on the available information. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Under Commission regulations, a fitness for duty examination may be ordered only if it is job- related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 (July 27, 2000) at Q.5. 2020001337 4 In this case, we find that the Agency properly ordered the Fitness for Duty examinations. The record shows that the Agency observed objective evidence that Complainant may be unable to safely perform the essential functions of his position when he was seen bumping into employees and using the wall to assist him in walking. Management noted that there were incidents where employees who did not know of Complainant’s vision condition nearly struck Complainant with powered equipment because they expected him to move. Thus, management had legitimate concerns that Complainant posed a safety threat to himself and others. Management subsequently ordered a second FFD to clear up the inconsistencies between Complainant’s submitted medical documentation and the first FFD. The second FFD concluded that Complainant was not medically fit for duty. We find that the Agency had a reasonable belief that Complainant was unable to safely perform the essential functions of his job and that the requests for Complainant to submit to the FFDs were not a violation of the Rehabilitation Act because the Agency adequately established that it was job-related and consistent with business necessity. Furthermore, Complainant has not shown that the Agency’s reasons for its actions were pretext designed to conceal discriminatory or retaliatory animus. As such, we find that Complainant did not show that the Agency discriminated or retaliated against him when it subjected him to the Fitness for Duty examinations. Accordingly, we AFFIRM the Agency’s Final Order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2020001337 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020001337 6 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 July 6, 2021 Date