0120070620
07-23-2009
Steve Clark, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Steve Clark,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070620
Hearing No. 430-2006-00167
Agency No. 200405652006100048
DECISION
On November 10, 2006, complainant filed an appeal from the agency's
October 17, 2006 final order 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Motor Vehicle Operator, WG 7-5, in the Laundry Service of the
agency's facility in Fayetteville, North Carolina. On November 8, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of disability (diabetes and hypertension), age (51
at the relevant time), and in reprisal for prior protected EEO activity
when: (1) on October 13, 2005, management informed complainant that he
was not fit for duty or qualified to operate a commercial motor vehicle;
and (2) on October 13, 2005, management temporarily reassigned complainant
due to his medical condition.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
unopposed motion for a decision without a hearing, dated September 6,
2006. The AJ found that, after viewing the evidence in the light most
favorable to complainant, a decision without a hearing was appropriate
as there were no genuine issues of material fact in dispute. The AJ
issued a decision without a hearing on September 28, 2006, finding no
discrimination. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged. Complainant makes no arguments on appeal.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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). 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 U.S. 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.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record we find that no genuine issue
of material fact exists. The record has been adequately developed,
complainant was given notice of the agency's motion to issue a decision
without a hearing, he was given an opportunity to respond to the motion,
he was given a comprehensive statement of undisputed facts, and he had
the opportunity to engage in discovery. Therefore, we find the AJ's
issuance of a decision without a hearing was appropriate.
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (the Rehabilitation Act) places certain limitations on an
employer's ability to make disability-related inquiries or require
medical examinations of employees. The inquiry made 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), 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 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 direct threat. Id., p. 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. United
States Department of Homeland Security, EEOC Appeal No. 0120060363
(October 9, 2007).
With respect to claim (1), assuming without so finding that complainant
established a prima facie case of disability, age, and reprisal
discrimination, we find that the agency's actions were job-related
and consistent with business necessity.1 The record reflects that one
of the requirements of the position of Motor Vehicle Operator is the
possession of a valid commercial driver's license (CDL). (Report of
Investigation, C1). The record also shows that during complainant's
annual physical in December 2004, it was determined that he did not meet
the medical criteria for the possession of a CDL as the result of his
blood-sugar levels and blood pressure. (R.O.I., B1; C3). As a result,
complainant was no longer assigned to driving duties and was temporarily
reassigned, beginning in February 2005, to temporary light-duty work.
(R.O.I., C6). The record shows that over the following several months,
complainant underwent several additional medical examinations by both his
private physician and agency medical personnel, and on May 25 2005, the
agency's Occupational Health Physician (OHP) determined that complainant
was still unfit to drive a commercial vehicle. (R.O.I., B5).
On September 27, 2005, the Chief of Human Resources (CHR) informed
complainant that he had until October 6, 2005, to provide medical
documentation showing that he met the requirements to hold a CDL.
(R.O.I., C6). The record shows that although complainant provided a note
from his personal physician stating that he was cleared to drive, the note
did not provide any of the specific information as requested by the CHR.
(R.O.I., C12). Subsequently, on October 12, 2005, complainant underwent
another medical examination by agency medical staff which, once again,
showed that complainant did not meet the medical requirements for a CDL.
(R.O.I., B5; C8). Upon review of the evidence, we find that the agency
conducted an objective individualized assessment of complainant's medical
condition and has established that the medical examinations at issue
were job-related and consistent with business necessity.
With respect to claim (2), to prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Here, we find that the agency has articulated legitimate,
non-discriminatory reasons for its actions. Specifically, that during
the period at issue, complainant's medical condition prevented him from
possessing a valid CDL, which was a requirement for the position of
Motor Vehicle Operator. (R.O.I., B1; C1; C3). The record shows that,
as a result of complainant not being medically cleared to drive, the
agency placed him in a temporary light-duty position at no loss of pay.
(R.O.I., C5-C8). We concur with the AJ's finding that complainant failed
to proffer any evidence to show that the agency's actions were motivated
by discriminatory or retaliatory animus.
We find that viewing the record evidence in the light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 23, 2009
Date
1 We note that we need not determine whether complainant is an
individual with a disability because the Rehabilitation Act's limitations
regarding disability-related inquiries and medical examinations apply
to all employees. See EEOC Enforcement Guidance: 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).
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0120070620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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