0120072656
05-04-2011
Wendell E. Mardis, Sr. Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Wendell E. Mardis, Sr.
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120072656
Hearing No. 470-2006-00015X
Agency No. 4J-460-0118-05
DECISION
Complainant timely filed an appeal from the Agency’s April 27,
2007, 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether Complainant has established that was
discriminated against on the basis of disability when he was found
medical unsuitable for and not hired into the position of Part-Time
Flexible Mail Processing Clerk.
BACKGROUND
On July 6, 2006, Complainant, an applicant for employment, contacted
an EEO Counselor and complained that he had been discriminated against
on the basis of disability when the Agency found him to be medically
unsuitable for the Mail Processing Clerk position and refused to hire
him. The Agency engaged Complainant in alternative dispute resolution to
resolve the matter but ultimately no resolution was reached. On September
15, 2005, Complainant filed a formal complaint of discrimination, which
the Agency accepted for investigation.
At the conclusion thereof, the Agency provided Complainant with a
copy of the ROI and notice of his right to request a hearing before
an EEOC Administrative Judge (AJ). Complainant requested a hearing,
thus his case was forwarded to the appropriate EEOC District Office and
assigned to an AJ. The AJ assigned to the case held a hearing on August
7, 2006, and issued a decision on April 20, 2007, in which she found
the following facts.
In March 2005, Complainant applied for a clerk position at the
Agency’s Terre Haute, Indiana Processing and Distribution Facility
(P&DF). At the time of his application, he was rated by the Department
of Veterans Affairs (VA) as thirty-percent disabled and therefore
eligible for service-connected disability compensation. On March 7,
2005, Complainant was notified that he had been placed on the hiring
register to be considered for a Part-Time Flexible Mail Processing Clerk
position, and that he should contact the Selecting Official (SO) to
arrange an interview. Administrative Judge’s April 20, 2007, Decision
(AJ Decision), at 1-2. The job description indicated that the person
holding the position would have to perform a combination of tasks required
to process mail using a variety of automated mail processing equipment.
It further indicated the physical requirements included heavy lifting
(up to 70 pounds), heavy carrying (45 pounds and over), pulling hands
over one’s head, reaching above one’s shoulders, use of fingers and
both hands, walking, standing, repetitious bending, use of both legs,
and certain visual and hearing requirements. Report of Investigation
(ROI) at Ex. 5.
The SO interviewed Complainant for the position and recommended him for
hire pending successful completion of a drug-screening test, background
check, and medical assessment. Complainant successfully completed the
drug screening and background check and was notified in April 2005 to
schedule a medical assessment. On April 7, 2005, Complainant completed
the Agency’s medical history questionnaire, and on April 11, 2005,
held a medical interview with an Agency nurse.
From the questionnaire and interview, the Agency identified the following
conditions: “ten percent VA disability for headaches and ten percent for
right arm-residuals-bilat[eral] feet pain dx plantar fasciitis- [fracture]
left metatarsals.” AJ Decision at 4. As a result, the Agency’s
Associate Medical Director for the Great Lakes Area (Medical Director)
referred Complainant to a contract physician, a board-certified orthopedic
physician (Orthopedist) to undergo a focused physical medical examination
and medical risk assessment. Id. At the time of the referral, the
Medical Director had no knowledge of Complainant’s back problems.
On April 12, 2005, the Medical Director requested additional information
regarding Complainant’s headaches, an ankle sprain which he suffered in
2003, and missing pages from his VA medical records in order to complete
the medical risk assessment. On April 29, 2005, Complainant underwent an
examination conducted by the Orthopedist. Subsequently, the Orthopedist
sent the Medical Director a report, dated April 30, 2005, which stated the
following pertinent information regarding Complainant’s medical history:
Impression -
1. History of facture, left ankle, with no objective clinical findings.
2. History of fracture, right ankle, with no objective clinical findings.
3. History of fracture, right wrist, with nonunion radial styloid
fracture.
4. History of episodic low back pain, with advanced degenerative disc
disease, L5-S1, no objective clinical evidence of lumbar radiculopathy.
5. History of multiple DWIs, possible alcoholism, activity status unknown.
Discussion –
It is my opinion that [Complainant] would be at a high risk of injury,
were he to be employed as a distribution clerk.
Id. at 4-5; see also Orthopedist’s April 30, 2005 Report (Orthopedist
Report), at Ex. 7, at 5.
The Orthopedist’s report and recommendation were produced based on
Complainant’s medical and work histories as well as physical and
X-ray examinations conducted by the Orthopedist. The report indicated
three medical conditions, namely, that Complainant had poor longitudinal
arches, a fragment in his right wrist, and a narrowed L5-S1 spinal disc
space with anterior spurs. See Orthopedist’s Report. Upon review,
the Agency’s Medical Director stated that Complainant’s disc problem,
which was located in the lower part of his back, is the area that is most
impacted when one is performing heavy lifting or bending or standing for
long periods of time. According to her, by performing such activities,
Complainant would be constantly aggravating that region. The Medical
Director indicated that such aggravation could result in Complainant
experiencing progression of his disease and disc herniation, which
would lead to problems ranging from back pain radiating down to his legs
and difficulty in urination and defecation, to paralysis of his legs,
depending on the severity of the herniation. She also indicated that
the potential risk, which she described as life-long, could arise the
first time Complainant would lift something or bend down or twist, or
anytime afterward. The Medical Director then opined that Complainant
had a 90-percent or more chance of incurring such an event than a person
who had no history of such conditions. See, Hr’g Tr., at 235 – 262;
see also ROI, at Affidavit C.
On May 5, 2005, the Agency’s Medical Unit notified the Human Resources
Department that Complainant’s medical assessment indicated that he was
not medically qualified to perform functions of the Clerk position, and
that he was rated “high risk.” The SO was subsequently notified of
the Medical Unit’s determination. On May 23, 2005, the SO, Complainant
and his representative, a Labor Relations Specialist, and an Agency
nurse held a meeting in which it was discussed whether Complainant could
be accommodated. AJ Decision, at 5. During the meeting, Complainant
did not request any accommodations. At the conclusion of the meeting,
the Labor Relations Specialist prepared a report which indicated that
“Complainant was not an individual with a disability … did not
need any functional/work limitations to perform the job … and had no
suggestions for a reasonable accommodation.” Id. at 6.
On June 27, 2005, the Medical Director sent a memorandum to the
Human Resources Manager (HR Manager) stating that it was her medical
recommendation that Complainant was a “high risk restriction” because
he was not medically qualified to perform the essential functions of
the position and accommodations would not reduce the medical risk
or restriction. Id.; see also ROI, Exhibit 12. In support of her
determination, the Medical Director provided the following:
On [April 8, 2005, Complainant] underwent a medical evaluation for the
position of Mail Processing Clerk at the Terre Haute P&DF. He was
examined by a Board Certified orthopedist on [April 29, 2005] for
the various medical problems… with his feet, wrists and lower back.
In 1984, he fractured his left ankle playing basketball.
In 1984, he fractured his right wrist in an automobile accident.
In 1995, he applied for a [service-connected] disability [pension with
the Department of Veterans Affairs]. Apparently, there was a non union
of the right Styloid and chronic fasciitis of both feet.
In 2003, he sustained a fracture of the right ankle while playing
basketball. In 1994, [Complainant] injured his lower back while lifting
a heavy bag. He was off work for [three] months and received physical
therapy and medications.
Again in 2002, while playing basketball he developed lower back pain.
He went to a chiropractor for treatments. X-rays revealed advanced
degenerative disc disease L5-S1. Records indicate that he has had
chronic lower back pain radiating to his right leg.
The duties of the position include heaving lifting, repeated bending,
and prolonged standing, walking and twisting. In my opinion [Complainant]
would not be able to perform the essential function of the job safely.
AJ Decision, at 6-7; see also ROI, Ex. 12 at 1.
On June 30, 2005, the HR Manager notified Complainant he had been found
tentatively medically unsuited for the job, and sent a proposed action
to the U.S. Office of Personnel Management (OPM) to affirm or reverse the
Agency’s determination as to medical suitability.1 On August 4, 2005,
OPM affirmed the Agency’s determination. Complainant was not hired
for the job, a decision ultimately made by the SO. AJ Decision, at 9.
Next, the AJ considered whether Complainant was an individual with a
disability under any of the three prongs enunciated in the Rehabilitation
Act, and determined that he was not. On that basis, she found that
he could not prevail on his disability claim and issued a decision
in favor of the Agency. The Agency subsequently issued a final order
adopting the AJ’s finding. Complainant thereafter filed this appeal.
Neither party submitted contentions on appeal.
STANDARD OF REVIEW
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
Bd., 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, at § VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
In order to prevail on his complaint, Complainant must first show that
he is an “individual with a disability,” defined as one who: (1)
has a physical or mental impairment that substantially limits one or more
major life activities; (2) has a record of such an impairment; or (3) is
regarded as having such an impairment. See 29 C.F.R. § 1630.2(g). Major
life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. § 1630.2(i). Sitting, standing,
lifting, and reaching are also recognized as major life activities.
See Interpretive Guidance on Title I of the Americans with Disabilities
Act, Appendix to 29 C.F.R. § 1630.2(i). For purposes of analysis,
we will assume, without so finding, that Complainant is an individual
with a disability.
Complainant must also show that he is a “qualified person with a
disability.” 29 C.F.R. § 1630.2(m). A “qualified individual with
a disability” is an individual who satisfies the requisite skill,
experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of such position. Id. Inasmuch as
Complainant was selected for the position in question pending the outcome
of a medical suitability determination, we will also assume, without so
finding, that he is a qualified individual with a disability. However,
based on his past injuries and medical conditions, the Agency found,
in effect, that he posed a direct threat and was therefore unsuitable
for employment. 29 C.F.R. § 1630.2(r).
In order to exclude an individual on the basis of possible future injury,
the Agency bears the burden of showing there is a significant risk, i.e.,
high probability of substantial harm. A speculative or remote risk is
insufficient. The agency must show more than that an individual with a
disability seeking employment stands some slightly increased risk of
harm. Selix v. U.S. Postal Serv., EEOC Appeal No. 01970153 (Mar. 16,
2000). Moreover, such a finding must be based on an individualized
assessment of the individual that takes into account: (1) the duration
of the risk, (2) the nature and severity of the potential harm, (3) the
likelihood that the potential harm will occur, and (4) the imminence of
the potential harm. Interpretive Guidance on Title I of the Americans with
Disabilities Act, Appendix to 29 C.F.R. § 1630.2(r). A determination
of significant risk cannot be based merely on an employer's subjective
evaluation, or, except in cases of a most apparent nature, merely on
medical reports. Rather, the agency must gather and base its decision
on substantial information regarding the individual's work and medical
histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-23 (9th Cir. 1985).
The Agency made its decision to find Complainant medically unsuitable
for employment based on the Orthopedist’s report and recommendation,
which were produced based on Complainant’s medical and work histories as
well as physical and X-ray examinations conducted by the Orthopedist. The
report indicated three medical conditions, namely, that Complainant had
poor longitudinal arches, a fragment in his right wrist, and a narrowed
L5-S1 spinal disc space with anterior spurs. See Orthopedist’s Report.
The Medical Director stated that Complainant’s disc problem, which
was located in the lower part of his back, is the area that is most
impacted when one is performing heavy lifting or bending or standing for
long periods of time. According to her, by performing such activities,
Complainant would be constantly aggravating that region. The Medical
Director indicated that such aggravation could result in Complainant
experiencing progression of his disease and disc herniation, which
would lead to problems ranging from back pain radiating down to his
legs and difficulty in urination and defecation, to paralysis of his
legs, depending on the severity of the herniation. She also indicated
that the potential risk, which she described as life-long, could arise
the first time Complainant lifts something or bends down or twists, or
anytime afterward. The Medical Director then opined that Complainant
had a 90 percent or more chance of incurring such an event than a person
who has no history of such conditions. See, Hr’g Tr., at 235 – 262;
see also ROI, at Affidavit C.
We find that the Agency’s medical unsuitability determination was
explained in sufficient detail, addressed the duration of the risk posed
by Complainant’s medical conditions, the nature and severity of the
potential harm, the likelihood that the potential harm will occur, and the
imminence of the potential harm. We therefore find that the Agency has
met its burden of showing that hiring Complainant into the Distribution
Clerk craft would have resulted in a high probability of substantial harm.
CONCLUSION
Based on a thorough review of the record, including evidence not
specifically addressed herein, we find that the AJ’s findings of fact
are supported by substantial evidence and her application of the law to
those facts to be legally sound. We find no reason to disturb the AJ’s
decision, and therefore AFFIRM the Agency’s final order which adopts it.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (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. “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 (Z0610)
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
May 4, 2011
Date
1 OPM automatically reviews medical suitability determinations regarding
any veteran with a service-connected disability of 30 percent or more.
See Public Law 95-454.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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