Rico M.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 6, 2018

0120160238 (E.E.O.C. Feb. 6, 2018)

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

Rico M.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120160238

Hearing No. 570-2013-00850X

Agency No. FBI-2012-00303

DECISION

On September 18, 2015, Complainant filed a premature appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a),
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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.2 For the following reasons, the Commission
AFFIRMS the Agency’s October 20, 2015 final order.

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 When Complainant filed his appeal, it was premature. However, the Agency subsequently
issued its timely final order. Where a premature appeal has been filed and the Agency
subsequently issues a final action while the appeal remains pending, we have held that the
issuance of the decision cured the defect and made the appeal ripe for adjudication. See
Franchesca V. v. Dep't of the Treasury, EEOC Appeal No. 0120150620 (March 24, 2017);
Complainant v. Dep't of Veterans Aff., EEOC Appeal No. 0120120712 (June 18, 2014).
0120160238

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Records Conversion
Specialist at the Agency’s Federal Bureau of Investigation (FBI) Records Management Division
in Winchester, Virginia. Complainant was diagnosed with Post Traumatic Stress Disorder. He
reported this condition to his supervisors. In response, the Agency required Complainant to
submit to a fitness for duty examination by an Agency-designated physician. The results of the
examination were reported to the FBI’s Security Division. In a letter dated September 19, 2012,
the Security Division notified Complainant that his Top Secret security clearance had been
suspended. On September 27, 2012, Complainant was placed on paid administrative leave. On
December 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability and age (51) when he was placed on administrative leave
following a fitness-for-duty examination.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on September 10, 2015. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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. (Aug. 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).

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The Supreme Court has held that summary judgment is appropriate where a
court determines that, given the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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
0120160238

3
outcome of the case. For the following reasons, we find that this matter does not present a
genuine issue of material fact requiring a hearing.

The gravamen of Complainant’s complaint seems to be that he was wrongfully required to
submit to a fitness for duty examination. He does not contend that the results of the examination
were inaccurate or that his security clearance was improperly suspended. Employers may
require a medical examination such as that conducted here only if the examination is job-related
and consistent with business necessity. See Enforcement Guidance: Disability-Related Inquiries
and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)
(July 27, 2000) (web version) (Guidance), at 5. This requirement is met when the employer has a
reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform the
essential job functions is impaired by a medical condition; or (2) that an employee poses a direct
threat due to a medical condition. See Guidance at 14.

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/her job because of a medical
condition. Objective evidence is reliable information, either directly observed or provided by a
credible third party, that an employee may have or has a medical condition that will interfere
with his ability to perform essential job functions or will result in a direct threat. Id. at 7. Where
the employer forms such a belief, its disability-related inquiries and medical examinations are
job-related and consistent with business necessity, if they seek only the information necessary to
determine whether the employee can perform the essential functions or work without posing a
direct threat to self or others. Id. It is the burden of the employer to show that its disability-
related inquiries and requests for medical examination are job-related and consistent with
business necessity. See Cerge v. U.S. Dep't of Homeland Sec., EEOC Appeal No. 0120060363
(Oct. 9, 2007).

Here, we find that the Agency had a reasonable belief based on objective evidence that
Complainant, because of his PTSD condition, might not have been able to safely perform the
essential functions of his job and/or that he posed a direct threat to himself and others.
Specifically, the record reflects that Complainant’s condition caused him difficulty sleeping,
anxiety, difficulty focusing, and poor short term memory. According to Complainant, the
condition made it “difficult for [him] to do [his] job.” For this reason, he explained his condition
to his supervisors. ROI Exhibit 9. Complainant’s affidavit testimony shows that his medical
condition interfered with his ability to perform the essential functions of his position. The
circumstances of this case support the Agency’s action of requiring him to undergo a fitness for
duty examination and subsequently placing him on administrative leave. Accordingly, we find
that the Agency’s actions did not violate the Rehabilitation Act.

To the extent that Complainant is claiming that he was subjected to disparate treatment
discrimination, we conclude that the Agency has articulated a legitimate, nondiscriminatory
reason for its actions which Complainant has failed to prove was a pretext designed to conceal
discriminatory animus.

0120160238

4
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the AJ’s
decision finding no discrimination.

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
0120160238

5
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 6, 2018
Date