01987083
07-19-2001
Rory B. Rich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Rory B. Rich v. United States Postal Service
01987083
July 19, 2001
.
Rory B. Rich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01987083
Agency No. 1E837100295
Hearing No. 380-97-8077x
DECISION
Rory B. Rich (complainant) timely initiated an appeal from the agency's
final decision concerning his equal employment opportunity (EEO) complaint
of unlawful 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of religion
(non-Mormon), sex (male), and age (43 at relevant time) and subjected
to retaliation for prior EEO activity (unspecified) when:
(1) he was given a discussion and issued a Letter of Warning (LOW)
regarding his use of sick leave on or about November 23, 1994;
he was required to undergo a fitness-for-duty examination (FFDE) on
December 14, 1994.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a former Outgoing Expeditor,
Level 6, at the agency's Boise, Idaho facility, filed a formal EEO
complaint with the agency on October 23, 1995, alleging that the agency
had discriminated against him as referenced above.<1> At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
religion, sex, and age discrimination and retaliation. The AJ noted that
the agency neglected to provide information as to the age and religion of
various employees who were treated more favorably than complainant and
that this was sufficient to establish an inference of age and religion
discrimination, as the agency gave no explanation for why it neglected
to provide this very basic information after a 14 month investigation.
The AJ also noted that a female comparator named by complainant was
treated more favorably than complainant and that complainant had filed
a previous EEO complaint of which at least one of the named responsible
management officials was aware.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that
complainant's use of unscheduled sick leave increased prior to
November 1994 and that because this leave seemed to correspond with
complainant's scheduled off days, a meeting was arranged to discuss
the issue on November 23, 1994. The agency was not satisfied with
complainant's explanation of his absences and issued a letter of
warning. Because complainant indicated at the November 23, 1994 meeting
that his absences were due to dust and an unhealthy work atmosphere
that was making him physically ill, his second-line supervisor (S2)
suggested that his first-line supervisor (S1) send complainant for a
fitness-for-duty exam to make sure complainant was able to do his job.
S1 testified that although he believed complainant was truly ill, his
frequent unscheduled absences were very disruptive, often requiring S1
to find a replacement for complainant at the last minute. S1 noted
that if complainant was unable to do his job due to an illness, he
needed to know about it. The AJ concluded that these were legitimate,
non-discriminatory explanations for the agency's actions.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation. In reaching this conclusion, the AJ
found that although complainant established that he used only 115 hours
of sick leave in 1994, not 298 hours as stated by the agency, he did
not show that the agency's concern with good attendance was linked to
religion, age, sex or prior EEO activity. The AJ noted that he reviewed
the comparative evidence and did not see a pattern of singling out
employees by sex, religion, age or prior EEO activity. Although noting
that complainant's supervisors were unsympathetic to complainant's
health problems and perhaps unwilling to believe complainant's claims
of ill health, the AJ concluded that complainant failed to establish
that any actions taken by management were motivated by his religion,
age, sex or prior EEO activity. The AJ then noted that complainant never
alleged he had a disability, never requested an accommodation, and did
not raise a claim of disability-based discrimination. In conclusion,
the AJ admonished the agency for the delays in the investigation and
for failing to collect basic facts relevant to the case, but found that
complainant failed to establish discrimination by a preponderance of
the evidence. The agency's final decision accepted the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present sufficient evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or
were motivated by discriminatory animus toward complainant's sex, age
or religion. In so finding, we note that the comparative employees
cited by complainant as receiving more favorable treatment than he, are
less than ideal comparators. While the AJ properly determined that the
comparative evidence in the record is sufficient to raise an inference
of discrimination, his later determination that the comparative evidence
is insufficient to establish discrimination is supported by substantial
evidence. Certain comparative employees cited by complainant had similar
or worse sick leave records than his, but these individuals were either
out of work for a continuous time period due to surgery/illness, or
were supervised by different first and second-line supervisors who had
different policies towards sick leave than did S1 and S2. S1 testified
that his training taught him that placing individuals on restricted
sick leave did not result in improved attendance and that he therefore
did not consider this option when reviewing complainant's situation.
Other employees in the facility were supervised by managers who used
restricted sick leave to address attendance problems rather than issuing
discipline or scheduling fitness-for-duty exams. Similarly, management
officials testified that an employee who was out for a great deal of
continuous time due to an illness or surgery, raised fewer suspicions than
one who sporadically used sick leave on days surrounding scheduled off
days, such as complainant. Complainant raised no other evidence that the
agency's actions were motivated by discriminatory or retaliatory animus.
We therefore discern no basis to disturb the AJ's determination that
the discussion, LOW and FFDE were not motivated by complainant's age,
religion, sex or prior EEO activity.
Furthermore, we note that an employer may require a medical examination
of an employee if the examination is job-related and consistent with
business necessity. See 29 C.F.R. � 1630.14(c); see also EEOC Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (July 27, 2000)
(Medical Examinations) at General Principles � B.<2> Under this
standard, medical examinations, such as a fitness-for-duty exam (FFDE),
are permitted only where the employer has a reasonable belief that an
employee's present ability to perform essential job functions will be
impaired by a medical condition or that s/he will pose a direct threat
due to a medical condition. See Medical Examinations, at question 17;
Fabish v. United States Postal Service, EEOC Appeal No. 01981273 (June
1, 2001). Here, the record indicates that there existed a sufficient
basis for complainant to have been required to attend an FFDE. S1 and
S2 stated that complainant's sporadic attendance was disrupting the work
force, especially because he often requested sick leave at the last
minute when it was hard to find a replacement for him. S1 noted that
complainant's job was pivotal and that when he used unscheduled leave,
it caused �a disaster.� The AJ found this testimony to be credible.
Moreover, complainant did not dispute S1's contention, but merely
noted that he knew his health was bad and therefore used his existing
sick leave when necessary. Finally, when, questioned about his use of
unscheduled sick leave, complainant stated that the new machinery at the
work site was causing paper dust and aggravating his sinus condition.
Because of this, S1and S2 determined that it was necessary to ensure
complainant was fit for duty. From this evidence, we find that the
decision to refer complainant for an FFDE was based on a reasonable
belief that complainant's ability to perform the essential functions of
his job was impaired by a medical condition.
We therefore discern no basis to disturb the AJ's decision. After a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 19, 2001
Date
1 At the time of the hearing, complainant was a Small Parcel and Bundle
Sorter, Level 5.
2 A complainant need not establish that he is an individual with
a disability in order to challenge a disability-related inquiry or
medical examination. See Medical Examinations, at General Principles � B.