01993165
02-20-2002
Russell R. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Russell R. Jackson v. United States Postal Service
01993165
February 20, 2002
.
Russell R. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01993165
Agency No. 1-H-328-0015-97
Hearing No. 150-98-8182X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
based on age (42) and disability (diabetes) when on December 20, 1996
and January 2, 1997, he was denied employment as a temporary �Christmas
Casual� employee in the agency's Orlando, Florida facility.
The record reveals that complainant applied and was tentatively selected
for the above-referenced position. A urinalysis conducted during a
post-offer, pre-employment medical examination revealed high blood
sugar, and the agency therefore requested that complainant have his
personal physician complete PS Form 2486, Report of Specific Medical
Conditions, regarding complainant's medical suitability for the position.
Complainant's personal physician completed the form by indicating that
complainant had poorly controlled diabetes but was medically suitable
for the position at issue. Based on this information, by letter dated
November 23, 1996, the agency advised complainant that in order to
complete its medical suitability determination it required �all medical
records for the past 24 months (diabetes).� On December 24, 1996, the
agency received complainant's medical records from May 6, 1996 through
November 22, 1996. By letter dated January 2, 1997, complainant was
advised that all the temporary positions at issue had been filled.
Following EEO counseling, complainant filed a formal EEO complaint with
the agency on March 12, 1997, alleging that the agency had discriminated
against him as referenced above. Upon receipt of the agency's Report
of Investigation (ROI), complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
analyzing complainant's claim as one of disparate treatment based on
disability and age, and finding complainant had failed to establish by
a preponderance of the evidence that his non-selection was motivated by
discrimination. The agency's final decision adopted the AJ's findings
and conclusions.
On appeal, complainant contends that the agency's EEO investigator
erred in excluding from the record the medical records of complainant
and the referenced comparators.<2> Complainant also asserts that the
AJ's decision failed to address all claims raised in his complaint.
We do not reach the issue of whether or not the AJ correctly found that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act. Rather, we find that even assuming arguendo
complainant is an individual with a disability, if his non-selection
claim is analyzed under disparate treatment theory, he has failed to
prove that the agency's proffered reason for his non-selection (his
failure to submit required documentation prior to the selection date)
was a pretext for discrimination on any alleged basis.
However, we find that the AJ failed to additionally analyze complainant's
claim that the agency violated the Rehabilitation Act by requiring
him to submit 24 months of medical records relating to his diabetes.
After an applicant is given a conditional job offer, but before he or
she starts work, an employer may make disability-related inquiries and
require a medical examination, whether or not job-related, but only if it
does so for all entering employees in the same job category. 29 C.F.R. �
1630.14(b); EEOC Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans With Disabilities
Act (July 27, 2000) at 3-4; ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations (October 10, 1995).
�Disability-related questions and medical examinations at the post-offer
state do not have to be related to the job.� ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(October 10, 1995) at 18. After an employer has obtained basic medical
information from all individuals who have been given conditional
offers in a job category, the employer may ask for follow-up medical
information if its is �medically related to the previously obtained
medical information.� Id. at 20. An applicant does not need to be
an �individual with a disability� to prevail on a claim of an improper
disability-related inquiry or examination under the Rehabilitation Act,
nor is discriminatory intent an element of the claim. Applying these
standards, we find that the undisputed facts establish that the agency
did not violate the Rehabilitation Act when it requested that complainant
provide medical records related to his diabetes from the prior 24 months,
following his doctor's report on the PS Form 2486 that complainant had
poorly controlled diabetes.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the Commission affirms the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 20, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2As discussed herein, the facts pertinent to the determination of the
issues raised on appeal are undisputed, as set forth in the parties'
affidavits, personnel records, and correspondence contained in the record
of investigation forwarded to the Commission on appeal. However, we note
that to the extent the agency's EEO investigator stated in the Report
of Investigation (ROI) that in order to preserve confidentiality the
medical records had not been included in the file, this was improper.
Rather, where confidentiality is an issue, the agency can address this
concern by redacting the identities of the comparator employees, not the
content of the medical records. Moreover, with respect to complainant's
own medical records, where complainant has placed them in issue and the
agency concurs that they are relevant to the issue(s) under investigation,
it was improper and unnecessary for the agency to exclude these documents
from the record on grounds of preserving confidentiality.