0120080049
09-25-2009
Victor Hadnot, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Victor Hadnot,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080049
Hearing No. 270-2005-00064X
Agency No. ARCENOL04APR0003
DECISION
On September 25, 2007, complainant filed an appeal from the agency's
final order 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.
The appeal is deemed timely1 and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
an applicant for employment with the U. S. Army Corps of Engineers, New
Orleans District, for the position of Surveying Technician, GS-0817-04,
advertised under Vacancy Announcement No. 14DF0344Y4. In April 2004,
complainant was referred for potential selection. The Coordinator
of Occupational Health (COH) for the New Orleans District referred
complainant for a pre-employment medical examination. The position was
under medical surveillance, which required a pre-employment medical
examination because of the physical requirements of the position.
Because complainant lived in Topeka, Kansas, he was permitted to have
the medical examination conducted in Topeka. The COH coordinated the
process to ensure compliance with the agency's standards. Complainant
was scheduled for the pre-employment physical examination and had taken
the required drug test. Complainant, however, failed to complete the
requisite physical examination when he declined to take the 12-lead
Electro-Cardiogram (EKG). The Surveying Technician position required the
EKG because of the physical demands of the position. Because complainant
did not take the EKG, he was not considered further for employment.
On May 14, 2004, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of age (49) when, during the hiring
process in April 2004, he was required to take a physical examination,
which he believed to be far beyond what the job announcement indicated
when he applied for the position.
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 held a hearing on September 6, 2006 and
issued a decision in favor of the agency on January 17, 2007.
The AJ found the following facts: The vacancy announcement made no
reference to a medical examination. Complainant was informed that he
only had to take a drug test, which he did. Subsequently, in the mail he
received the New Employee's Physical Checklist, which was to be presented
at his physical examination. In the New Employee's Physical Checklist,
one of the criteria stated "12 Lead EKG (Pre-placement and age over
40)." Complainant believed that this requirement was discriminatory
based on age. Complainant interpreted the statement to mean that
"this particular test was reserved for people over 40." On or about
April 6, 2004, complainant contacted the agency regarding his concerns.
He spoke first with a Human Resources Officer (HRO) and later with the
COH. Complainant told the HRO that he would take all the other tests
but would not take the EKG because he believed it was discriminatory.
The HRO told complainant that if he took the test he would have the job.
Complainant nevertheless refused to take the test. Complainant and the
HRO also exchanged e-mails. According to HRO's e-mail dated April 16,
2004, she believed, after speaking with complainant over the phone, that
he was withdrawing his application for employment. The HRO also stated
that complainant was not being treated differently than anyone else who
had applied and had been tentatively selected for that type of position.
Complainant responded via e-mail dated April 19, 2004, which stated
that he was interested in the position but would not submit to the EKG.
The COH stated that an EKG is required for all candidates as part of
their pre-employment physicals. The COH explained that only employees
over the age of 40 are required to take the EKG during their annual
physical examinations. The COH created the New Orleans New Employee
Physical Checklist and included the language "pre-placement and age over
40" to remind the clinic to perform the EKG on all pre-employment exams
and for current employees over the age of 40.
The AJ found that the COH's testimony was unhesitant, unrehearsed,
and plausible. The AJ found that the COH gave honest and credible
testimony as to why the new employee checklist stated, "12 Lead EKG
(Pre-placement and age over 40)." Further, the AJ found that the COH
credibly testified that the EKG requirement applied to all individuals
at the pre-employment stage. The AJ concluded that the EKG policy
applied to all such individuals, regardless of age, and therefore was
non-discriminatory.2
When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that he was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in his credibility
determination of the COH's testimony. Complainant also argues that the
checklist was facially discriminatory and therefore, the AJ erred by
not finding that the checklist was direct evidence of discrimination.
ANALYSIS AND FINDINGS
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
We find that the AJ's findings of fact are supported by substantial
evidence. Complainant argues that the COH offered testimony during the
hearing that was contradictory to the EEO counselor's report. We find
that this is not the case. The counselor's report states that the COH
stated that the EKG would be required of any applicant offered a position.
Similarly, during the hearing, the COH stated that all applicants were
required to take the EKG. We note that, in the counselor's report,
the HRO stated that that any applicant eligible for hire would have to
take the physical, regardless of age, and that the 12 Lead EKG would be
required for applicants over 40 years old for pre-employment placement.
However, we give greater probative value, as did the AJ, to the COH's
testimony at the hearing that the 12 lead EKG was required of all persons
undergoing pre-employment physicals, regardless of age. Accordingly,
we find that the AJ's finding that complainant failed to establish by
the preponderance of the evidence that he was discriminated against on
the basis of age is supported by substantial evidence in the record.3
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 action.
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
September 25, 2009
Date
1 On appeal, complainant states, and the agency does not contest, that
the agency has never issued a final order in this case. The decision
of the EEOC Administrative Judge therefore became binding on the agency
by operation of law forty (40) days after its receipt by the agency.
See 29 C.F.R. � 1614.109(i). Our regulations do not limit the time in
which a complainant must file his or her appeal in these circumstances.
2 The AJ noted that "whether the policy requiring an annual EKG for
employees over the age of 40 is discriminatory is not addressed herein,
as the complainant does not have standing to challenge this policy.
He does not fall into the category of employees 40 and over who are
required to have an annual EKG. Therefore, he cannot contest the policy
as an employee because he foreclosed becoming an employee when he refused
to take the test." We agree with the AJ that complainant lacks standing
to challenge the agency's requirement for employees over 40 years old
to submit to an annual EKG because complainant was never employed by
the agency.
3 Complainant did not allege that he was discriminated against in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., when he was required to take a pre-employment
medical examination. We note, however, that employers are permitted
to require a post-offer, pre-hire medical examination of an applicant
for employment, which is what appears to have transpired here. See 29
C.F.R. � 1630.14(b).
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0120080049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080049