Willard Grayson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.

Equal Employment Opportunity CommissionJan 6, 2009
0720080044 (E.E.O.C. Jan. 6, 2009)

0720080044

01-06-2009

Willard Grayson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.


Willard Grayson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area)

Agency.

Appeal No. 0720080044

Hearing No. 340-2005-00688X

Agency No. 4F913003105

DECISION

Following its June 2, 2008 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding of discrimination in violation

of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. The agency also requests

that the Commission affirm its rejection of the relief ordered by the AJ.

For the following reasons, the Commission REVERSES the agency's final

order.

On May 5, 2005, complainant filed an EEO complaint alleging

discrimination, in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,

on the bases of race (Black), sex (male), age (63), and in retaliation

for prior EEO activity when agency officials did not allow him to return

to duty since December 21, 2004.

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 and the AJ held a hearing on December 5, 2007.

The AJ issued a decision on April 17, 2008. The agency subsequently

issued a final order rejecting the AJ's finding that complainant proved

that he was subjected to discrimination as alleged.

FACTUAL BACKGROUND

At the time-frame relevant to this complaint, complainant worked as a

full-time Custodial Laborer at the Glendale Post Office in Glendale,

California. The record shows that on December 17, 2004, complainant

was mopping the floor of the Glendale Main Post Office. He left his mop

and bucket unattended for a period of time while he cleaned the lobby.

On his return, when he removed the mop from the bucket complainant smelled

a strong odor which made him sick to his stomach and gave him a headache.

Complainant reported the incident to a supervisor (SO) and filled out

an Office of Workers' Compensation Programs (OWCP) Form CA-l indicating

he had headaches and stomach nausea from smelling a contaminated mop.

SO called complainant's first-line supervisor (S1), who was out of the

office at the time, and she advised SO to send complainant to Glendale

Adventist Occupational Center for evaluation that day. At 1:45 p.m. on

December 17, 2004, complainant was examined by physician (P1), who filled

out a Daily Status Report, OWCP form CA-17 indicating that complainant

suffered from minimal abdominal gas, but was able to return to his

regular duties that day. In response to the question on the CA-17,

"Are Interpersonal Relations Affected because of a Neuropsychiatric

Condition?" he replied, "yes" and noted that complainant was "convinced

he is being retaliated against-possibly poisoned." P1 completed various

other medical forms which stated that he diagnosed complainant with

abdominal cramps, prescribed over-the-counter Extra Strength Tylenol,

returned him to full duty, and advised complainant to follow-up with

his own doctor. On the back of one form P1 wrote: "as he left [patient]

stated that someone is putting 'something' in his food." The statement

complainant wrote at 10:25 a.m. on December 17, 2004, in support of his

CA-1 claim did not mention being poisoned or retaliated against.

Complainant returned to work on Saturday, December 18, 2004, without

incident and was then off work on December 19 and 20, 2004, his regularly

scheduled days off. Complainant returned to work on Tuesday, December

21, 2004, and worked without incident until 2:30 p.m. when he was given

a 21-day letter, by S1. In her affidavit, S1 stated that "because

the Neuropsychiatric condition was affecting [complainant's] ability

to perform work," on December 21, 2004, she issued a "21-day letter" to

complainant, advising him to provide medical documentation from his doctor

clearing him to return to work. In the 21-day letter, S1 explained that

the documentation was to be sent to the agency's District Medical Unit

and that complainant would not be allowed to return to work until his

supervisor had received clearance from the Medical Unit. The 21-day

letter referred to complainant returning to duty following surgery,

a serious illness/injury or absence of 21 days or more. Complainant's

specific injury or illness was not identified nor was complainant told

what type of doctor he needed to see. The letter only made reference to

"your treating physician."

In response to S1's 21-day letter, on December 22, 2004, complainant

submitted the Request to Return to Duty form S1 had given him along with

a Postal Work Capacity form from the office of his treating physician

(P2). The form referred only to complainant's chemical inhalation,

identified treatment as "caution with chemical constitution," released

him to return to work on December 23, 2004, and was signed by a Licensed

Physician Assistant (LPA) in P2's office. Complainant testified that

S1 told him he had to go to his medical doctor and get a letter stating

that he was able to perform his job so he went to LPA, who he thought

was a doctor because he was filling in for P2 in her absence.

Complainant also testified that he submitted the forms to the Manager

of Customer Services (S2) who told him that he was required to provide

documentation from a psychiatrist that he was not a danger to himself

or others before he would be allowed to return to work. S2 stated this

was because P1 stated that complainant showed evidence of a possible

neuropsychiatric condition, citing the doctor's statement on the CA-17.

On January 21, 2005, complainant submitted a note signed by P2 stating

that he was under her care and did not appear to present a threat

to himself and could return to work on that date. Complainant was

verbally advised by someone in management or the Medical Unit that

P2's note was insufficient to support complainant's return to work.

Complainant then sought the services of a psychologist (P3) whose office

was in the same building as P2. P3 met with complainant on January 25,

2005, and submitted a letter to S2 on that day, stating that complainant

exhibited no indications of psychosis or major emotional difficulty.

P3 concluded that complainant did not appear to manifest a major thought

disorder or major emotional difficulties and did not appear to be a

danger to himself or others.

On January 27, 2005, the agency's Medical Unit Director (P4) called

P3 after reading his January 25, 2005 report. It was not clear to P4

that P3 had any background knowledge of complainant or that he was aware

complainant thought people were trying to poison him. P3 confirmed to

P4 that he did not know complainant's prior psychiatric history.1 P4

wanted P3 to review the prior FFDE report from 2002, and recommended to

the Medical Unit that they ask complainant to sign a release so the report

could be sent to P3. Complainant did not agree to sign such a release.

Complainant testified that every time he did one thing, management

wanted something else and he was spending a lot of his own money,

so he stopped complying. Complainant testified that he tried without

success to negotiate with the Occupational Health Nurse Administrator

(RN) on allowing him to return to work.

On March 1, 2005, the Postmaster (PM) sent a letter to complainant

informing him that he had not been cleared to return to work because

he had not produced sufficient medical documentation as required by

the District Medical Office. PM enclosed a five-page Physician or

Practitioner Certification form which she asked complainant to have

his doctor complete and return to the Medical Unit. PM emphasized that

complainant's supervisor would not allow him to return to work until he

was cleared by the Medical Unit.

On March 9, 2005, complainant called RN, again asking why he needed to

see P3. RN testified that she told him P3 wanted to do further testing

and review complainant's records and his 2002 FFDE. On March 30, 2005,

RN called complainant about seeing P3. Complainant again questioned why

he needed to do so and told RN he did not want to see P3. S2 testified

that complainant called her all the time he was out asking to come back

to work. She told him the documentation he provided was not satisfactory

and they needed something other than what he had given them.

On June 10, 2005, S1 sent complainant a Notice to Submit Medical

Documentation, in which she stated that complainant had not complied with

the agency's prior notice to make an appointment with his doctor and to

sign a release allowing the agency to send his previous FFDE report to

his attending physician. The notice further advised complainant that if

he did not comply within five days he would be considered absent without

leave (AWOL) and steps would be taken to remove him.

On August 11, 2005, S1 issued a Notice of Deferred Seven-Day Suspension to

complainant for failure to follow instructions and for being AWOL from

June 25 through August 11, 2005. On March 23, 2006, the suspension

was reduced to a Letter of Warning. On March 22, 2006, the agency

issued complainant another Notice of Deferred Seven-Day Suspension

for failure to follow instructions and for being AWOL from August 12,

2005 through March 16, 2006. Thereafter, the agency contemplated a

removal action, but complainant told them he was planning to retire.

Complainant explained at the hearing that if management removed him he

would lose all his benefits, so they waited and let him retire on August

1, 2006, without any further discipline.

On March 2, 2006, the agency referred complainant for a psychiatric FFDE.

S2 testified that the exam was scheduled in response to concerns from

the Union President that complainant did not have the money to pay for

a psychiatric exam. Complainant did not attend the FFDE. The exam was

rescheduled three times, but was never conducted. Complainant retired

before the third-rescheduled appointment. RN testified that complainant

was not sent for a psychiatric FFDE earlier because no one in management

requested an exam. The record shows that the usual procedure is for

management to make the request to Labor Relations which refers it to

the Medical Unit. RN did not know why it was not done in December 2004,

in this case.2

AJ'S FINDINGS

Race, Gender & Age Claims

The AJ concluded that complainant failed to establish a prima facie case

of race, sex or age discrimination and noted that the record is devoid of

similarly situated individuals, outside complainant's protected classes

who were treated more favorably. In addition, the AJ found no evidence

of race, sex or age animus on the part of any responsible management

official.

Reprisal Claims

The AJ concluded that complainant established a prima facie case

of reprisal. Specifically, the AJ noted that the record shows that:

(1) complainant filed four EEO complaints between 2000 and 2003; (2) S1

was aware of his complaints in that she was actively involved in two of

complainant's prior EEO activities as late as 2003; (3) S1 would not allow

complainant to come to work until he provided an acceptable psychiatric

release; and (4) the time between complainant's last EEO activity (April

2, 2003)3 and S1's actions (December 21, 2004)4 was sufficiently short

as to infer a causal connection. In addition, the AJ concluded that S1

did not present a legitimate, non-retaliatory reason for the issuance

of the 21-day letter and the requirement that complainant provide the

agency with a psychiatric report before returning to work.

Rehabilitation Act Violation

While complainant did not allege disability discrimination or claim

that he was disabled or perceived as disabled, the AJ, nevertheless,

concluded that the agency violated the Rehabilitation Act by making

a disability-related inquiry on December 21, 2004, and not allowing

complainant to return to work until he provided what the agency viewed as

a satisfactory psychiatric report in response. The AJ concluded that the

agency's justifications for ordering complainant to obtain a psychiatric

report before allowing him to return to work after the agency placed

him off duty failed to meet the agency's burden of demonstrating that

its requests were job-related and consistent with business necessity.

CONTENTIONS ON APPEAL

The agency asserts on appeal that the AJ committed reversible error in

finding that the agency retaliated against complainant. Specifically,

the agency argues that the evidence of record demonstrates that there was

no causal link, temporal or otherwise, to establish a prima facie case of

retaliation. The agency notes that more than 18 months elapsed between

the issuance of the 21-day letter and complainant's prior EEO activity.

The agency also asserts that the AJ committed reversible error in finding

that the agency violated the Rehabilitation Act in requiring complainant

to obtain medical/psychiatric clearance to return to work. Specifically,

the agency asserts that the request for psychiatric clearance was

job-related and consistent with business necessity since complainant had

a history of accusing his co-workers of attempting to poison him and of

tampering with his food, as well as being sent for psychiatric fitness

for duty examinations. The agency also asserts that complainant never

raised a claim of disability discrimination and retired voluntarily.

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).

Rehabilitation Act Violation

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 only if it is job-related and consistent with

business necessity. See 29 C.F.R. �� 1630.13(b), 14(c).5 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).

Upon review of the evidence, we agree with the AJ's conclusion that the

record is devoid of evidence to support the finding that complainant

had any problems performing his work or interacting with his co-workers.

We also agree with the AJ that while P1's statement on the CA-17 form may

have legitimately raised some questions about complainant's mental state,

the agency's response was extreme and the demands made on complainant

overly burdensome under the circumstances. In addition, the record

is devoid of any evidence that complainant engaged in any action that

would have led the agency to form a reasonable belief that complainant

posed a direct threat or could not perform the essential functions of

his position. The agency had one statement from a doctor whose specialty

was Occupational Medicine, who saw complainant briefly and only once,

indicating that complainant thought he was possibly poisoned. Moreover,

the agency's Threat Assessment Team, whose purpose is to determine if

an employee poses a threat, found that complainant was not a threat.

While S1 stated in her affidavit that she gave complainant the 21-day

letter because his neuropsychiatric condition was "affecting his ability

to perform work," there is no evidence to support that statement.6 The

agency attempted to use complainant's prior FFDE in 2002, to support

its actions in late 2004, but the psychiatrist in 2002, did not find

complainant to be a threat and no threatening behavior was cited in the

interim.

Although it was proper for the agency to initially send complainant

for a medical evaluation after he filed a CA-1 form complaining that

a contaminated mop made him ill with nausea and headache, the agency

had no basis to keep him out of work once P1 found him fit for duty.

Once P1 concluded that complainant was able to return to work, despite

complainant's belief that he was the victim of poisoning, and after

the agency's own Threat Assessment Team did not find complainant posed

any threat, the agency's refusal to allow complainant to return to work

was not consistent with business necessity nor was it the result of an

imminent threat, and therefore it violated the Rehabilitation Act.7

Termination/Retirement

We also find substantial evidence in the record to support the AJ's

conclusion that complainant decided to retired solely because the

agency kept complainant out of work, issued progressive discipline and

contemplated a termination action toward complainant. Complainant

initiated his retirement after the agency began to contemplate a

removal action against him. Complainant testified at the hearing that

if the agency removed him he would have lost all his benefits, so the

agency agreed to hold off on any termination action and let him retire

on August 1, 2006, without further discipline. Accordingly, we find

substantial evidence in the record to support the AJ's conclusion that,

but for the agency's improper medical requirements, complainant would

not have retired in August 2006. Accordingly, we affirm the AJ's award

of remedies pertaining to reinstatement and back pay.8

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we REVERSE the Final

Agency Decision and reinstate the AJ's award.9

ORDER

To the extent that the agency has not previously complied with this order,

the Agency is ordered to take the following action within thirty (30)

days of the date this decision becomes final:

(1) The agency shall offer complainant reinstatement to his former

Custodial Laborer position at issue herein, retroactive to December

22, 2004 (i.e., the first day complainant was not permitted to work).

Such reinstatement should include all pay raises that would have

likely occurred. The offer shall be made in writing. Complainant shall

have 15 days from receipt of the offer to accept or decline the offer.

Failure to accept the offer with 15 days will be considered a declination

of the offer unless complainant can show that circumstances beyond his

control prevented a response within the time limit.

(2) The agency shall determine the appropriate amount of back pay,

with interest, and other benefits due complainant, including all

salary increases, pursuant to 29 C.F.R. � 1614.501. Back pay shall be

calculated retroactively to December 22, 2004. The agency shall provide

a copy of these calculations to complainant. Such calculations shall

include a detailed statement clarifying how complainant's back pay award

was reached. The statement shall consist of a clear and concise, "plain

language" statement of the methods of calculations used for the instant

matter and actual calculations applying said formulas and methods.

Complainant shall cooperate in the agency's efforts to compute the

amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding

the exact amount of back pay and/or benefits, the agency shall issue a

check to complainant for the undisputed amount within thirty (30) calendar

days of the date the agency determines the amount it believes to be due.

Complainant may petition for enforcement or clarification of the amount

in dispute. The petition for clarification or enforcement must be filed

with the Compliance Officer, at the address referenced in the statement

entitled "Implementation of the Commission's Decision."

(3) The agency shall take corrective, curative and preventive action to

ensure that discrimination does not recur. This includes, but is not

limited to, providing training to the relevant management officials and

medical unit officials regarding their responsibilities with respect

to eliminating discrimination in the federal workplace. The training

must place a special emphasis on the agency's obligations under the

Rehabilitation Act;

(4) The agency shall consider taking appropriate disciplinary action

against the responsible management officials and medical unit officials.

The Commission does not consider training to be disciplinary action.

The agency shall report its decision to the compliance officer. If the

agency decides to take disciplinary action, it shall identify the action

taken. If the agency decides not to take disciplinary action, it shall

set forth the reason(s) for its decision not to impose discipline.

If the responsible management official has left the agency's employ,

the agency shall furnish documentation of his/her departure date; and

(5) The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Glendale Post Office, Glendale,

California facility copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0408)

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

January 6, 2009

Date

1 In April 2002, then Manager of Customer Services at Grand Central (M02)

requested that complainant be sent for a Fitness for Duty Examination

(FFDE) because, in summary, complainant believed his food and/or drink

had been tampered with at the various stations where he worked and he

thought some of his co-workers were out to get him. The request was

approved and complainant underwent an evaluation by a psychiatrist

(P02) on August 1, 2002. The FFDE was arranged and paid for by the

agency. P02 concluded that complainant suffered from a delusional

disorder and recommended, but could not require, psychiatric treatment.

P02 stated that complainant was not a danger to himself at that time.

Whether complainant was a danger to others P02 found to be open to

some question, noting that paranoid individuals were no more likely

than the general population to attack others. Following the evaluation

complainant was returned to work without restrictions. In March 2003,

P02 wrote a supplemental report clarifying that complainant was working

at the time and did not appear to be a danger to himself or others.

P02 again recommended treatment, but in lieu of that (which would have

to be voluntary), he suggested complainant be evaluated every six months,

which was never done.

2 No other agency witness could explain why complainant was not sent

for an FFDE earlier.

3 Complainant's last EEO complaint closed on April 2, 2003.

4 This is the date that S1 issued the 21-Day Letter.

5 Whether complainant is an individual with a disability is irrelevant to

the issue of whether the agency properly required complainant to undergo

a medical examination because 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).

6 S1 did not testify at the hearing because she had retired from the

agency previously.

7 We find that complainant's failure to raise the Rehabilitation Act

as a basis for discrimination does not preclude the Commission from

finding a violation since complainant's claim did not change and the

facts supporting such claim were sufficiently developed by both parties.

8 The AJ concluded that complainant failed to present evidence in support

of compensatory damages and complainant did not appeal this finding.

9 Since this decision finds that the agency's Rehabilitation Act violation

caused complainant to miss work since December 22, 2004, and ultimately

retire to avoid termination, it is not necessary to address the merits

of the AJ's retaliation finding.

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0720080044

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0720080044