Sherman K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172137 (E.E.O.C. Dec. 19, 2018)

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

Sherman K.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120172137

Agency No. 2003-0667-2016102719

DECISION

On May 30, 2017, 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
May 11, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Utility Systems
Operator (USO), GS-11, at the Agency’s Overton Brooks VA Medical Center in Shreveport,
Louisiana.

On May 9, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the basis of age (63) when:

1. on May 7, 2014; February 25, 2015; and March 8, 2016, the Medical Director of
Occupational Health (Medical Director) required Complainant to take a “treadmill
stress test” as part of Complainant’s annual physical even though the test is not
required for Complainant’s position.

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.
0120172137

2

The position description for a USO states that a USO is regularly subjected to extreme temperature
changes and confined spaces. Therefore, the Agency requires USOs to undergo an annual physical
examination to determine their physical fitness for the position.

Each year, for three years running, Complainant was required to submit to a 10-minute treadmill
stress test as part of his annual physical. According to Complainant, he was told by the Medical
Director that he had to submit to the test because of his age. The Medical Director stated that she
considers multiple risk factors to determine whether additional cardiovascular testing is necessary,
and if a USO has two or more risk factors, she orders additional cardiovascular testing. The
Medical Director considers the following risk factors: sex, age, high blood pressure medication,
smoker, diabetic, and Body Mass Index (BMI). In Complainant’s case, the Medical Director
ordered additional cardiovascular testing because Complainant is a male, over the age of 50, has
an elevated BMI, has an increased lipid panel indicating high cholesterol, and previously was a
smoker. The Medical Director said that the most cost-effective method of testing an employee’s
cardiovascular capacity is a stress test. Of note, Complainant passed the stress test every year.

At 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency said that the Medical Director provided legitimate, non-discriminatory
reasons, and Complainant did not provide any evidence to rebut the Agency’s explanations.
Further, Complainant did not show that he was subjected to severe or pervasive harassment
because he only had to undergo the stress test once a year. Accordingly, the Agency found that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that he will always be required to take the stress test because he is
a man and over the age of 50. Complainant also criticizes the investigation as one-sided.
Complainant claims that the evidence he submitted was ignored. Accordingly, Complainant
requests that the Commission reverse the final decision.

ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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
0120172137

3
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”).

As an initial matter, the Commission will address Complainant's dissatisfaction regarding the
investigation of his complaint. Complainant claims on appeal that the investigation was biased and
inadequate. Upon review of the entire record, the Commission is not persuaded that the
investigation into Complainant's complaint was biased or improper. Complainant failed to request
a hearing, a process which would have afforded him the opportunity to conduct discovery and to
cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly and adequately conducted.

Hostile Work Environment

Complainant alleges that the stress tests he endured constitute an unlawful hostile work
environment. To establish a claim of harassment a complainant must show that: (1) he belongs to
a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993).

We find that Complainant was not subjected to a hostile work environment. Complainant has not
shown that the conduct he suffered was objectively severe or pervasive, nor has he shown that the
conduct affected a term or condition of his employment. Notably, Complainant successfully
passed all stress tests and experienced no adverse consequences. Israel F. v. Dep’t of the Army,
EEOC Appeal No. 0120160890 (Apr. 12, 2016). In Israel F., the Commission concluded that the
complainant failed to state a claim on the basis of age when the agency’s medical professional
used age as part of a risk factor scale to require the complainant undergo a medical evaluation.
Complainant did not suffer an adverse action because he passed the examination. Id.

Furthermore, there is no evidence that the conduct at issue was based on discriminatory animus.
The Medical Director explained that Complainant was required to undergo a stress test as part of
his annual physical based solely on the fact that his position required strenuous work, including
work in heat and confined spaces, sometimes wearing a respirator; that such duties could
precipitate a cardiovascular event; and that the easiest and most cost-effective means of detecting
risks associated with such duties was a stress test. In addition, the Medical Director noted that an
employee with two or more increased risk factors for a cardiovascular event are usually required
to undergo a stress test. In Complainant’s case, he is a male over the age of 50; his BMI was
considered elevated; he had an increased lipid panel; and he was previously a smoker.
0120172137

4
Complainant’s age was only one of several risk factors. Based on Complainant having these risk
factors, the Medical Director had Complainant undergo the stress tests.

Even assuming being subjected to the test constituted actionable harassment, we have previously
addressed the question of whether a medical examination constitutes discrimination under the
ADEA when age is a factor in deciding whether an employee should be required to take the
examination. Boulineau v. Dep’t of the Army, EEOC Petition No. 03940039 (July 15, 1994). In
that case, we concluded it was not. Therein, we explained that, although age was a factor in
deciding whether the employee was required to take the examination (which included a treadmill
stress test), the test itself did not have an age component and therefore were not related to any age
factor. Id.

The Commission finds that Complainant has not shown that he was subjected to a discriminatory
hostile work environment. Furthermore, to the extent that Complainant is alleging disparate
treatment with respect to his claims, the Commission finds that he has not shown that the Agency's
reasons for its actions were a pretext for unlawful discrimination.

Finally, the Commission notes that the Rehabilitation Act's limitations regarding disability-related
inquiries and medical examinations apply to all employees. 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). The inquiry may be made or the examination 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. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002
(July 27, 2000), at Q.5. 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 direct threat. 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, as discussed above, the Medical Director ordered Complainant to undergo the stress test
examinations based on Complainant’s position requiring strenuous work that could precipitate a
cardiovascular event. The most cost-effective means of detecting the risk for such an event was a
stress test. The Medical Director examined Complainant’s risk factors, which included his BMI;
increased lipids; and his history as a former smoker as well as his age, and determined that a stress
test was necessary to ensure that he could safely perform his duties. Therefore, upon review of
the record, we find that the stress test examinations were not a violation of the Rehabilitation Act
because the Agency adequately established that it was job-related and consistent with business
necessity.

0120172137

5
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 decision.

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 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.
0120172137

6
“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

December 19, 2018
Date