01994914
05-06-2000
William J. Webb, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
William J. Webb, )
Complainant, )
) Appeal No. 01994914
v. ) Agency No. 4A-117-0063-97; 4A-117-0026-99
) Hearing No. 160-97-8612X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> Complainant alleges he was
discriminated against on the basis of physical disability (right eye
condition) when on February 5, 1997, he was sent for a fitness for
duty medical examination ("examination"). For the following reasons,
the Commission affirms the agency's final decision.
The record reveals that complainant, a Full Time Letter Carrier at the
agency's facility in Coram, New York, filed a formal EEO complaint on
March 10, 1997, alleging that the agency had discriminated against him as
referenced above. See agency case no. 4A-117-0063-97. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
In determining that the case was appropriate for summary judgment,
the AJ found that the following material facts were not in dispute.
The facility underwent route inspections in January 1997. During the
inspection of complainant's route, the examiner informed complainant that
he should be driving faster between deliveries. Complainant informed
the examiner that he felt driving faster was not safe due to the chance
of hitting a mailbox or a parked car because he was a disabled veteran
with a right eye condition. The examiner informed the Officer in Charge
(OIC) of his observations. As a result, the OIC scheduled complainant
for an examination.
The agency's final decision adopted the AJ's ultimate finding of no
discrimination.<3> On appeal, complainant contends that the AJ erred
in granting the agency's motion for summary judgment because genuine
issues of material fact existed regarding the speed at which he was
told to drive and the conversation that transpired between him and the
route examiner. Complainant also filed a spinoff complaint (agency case
no. 4A-117-0026-99) alleging that the agency denied him administrative
leave to prepare for and attend at home a telephonic settlement conference
called by an EEOC AJ. The agency investigated the spin off complaint
and forwarded a copy of the investigative report to the Commission.
We do not reach the issue of whether or not the AJ correctly held that
complainant is a qualified individual with a disability within the
meaning of the Rehabilitation Act. Based on our review of the record,
we find that even assuming arguendo complainant is a qualified individual
with a disability, complainant was not subject to an adverse employment
action because it was not improper for the agency to request a medical
examination. See Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981); Visage v. Department of the Air Force, EEOC Request
No. 05940993 (July 10, 1995). In reaching this conclusion, we find that
during a route examination, a route examiner told complainant that he
should be driving faster. Complainant attested that his response was
that he was driving as fast as he felt safe driving "without the chance
of hitting a mailbox or parked car." Complainant also attested that
he informed the examiner that he was a disabled veteran with a right
eye condition. 29 C.F.R. � 1630.14(c) permits an agency to require an
employee to take a medical examination that is job-related and consistent
with business necessity. See Ward v. United States Postal Service, EEOC
Appeal No. 01985961 (March 6, 2000). An employer must have a reasonable
belief, based on objective evidence, that: (1) an employee's ability to
perform essential job functions will be impaired by a medical condition;
or (2) an employee will pose a direct threat due to a medical condition.
See EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, Question 14 (March 25, 1997). The Commission
finds that based on complainant's responsive statement about his right eye
condition to a route examiner who was assessing complainant's performance,
it was reasonable for management to conclude that complainant might have
been experiencing problems driving. Accordingly, despite complainant's
protestations to the contrary, we find that material facts were not in
dispute and summary judgment was proper. We discern no basis to disturb
the AJ's ultimate conclusion that complainant failed to establish that
the examination was motivated by discriminatory animus.
Under our revised regulations, spin off complaints shall be dismissed
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at 29
C.F.R. � 1614.107(a)(8)).<4> However, we find that complainant properly
raised his claim concerning the denial of administrative leave with the AJ
of record, who, for reasons we cannot determine, did not address it.<5>
Upon review, we find that management offered to make the Postmaster's
office available to complainant for the duration of the phone call,
stating that the office was secluded and would provide complainant with
privacy. Although complainant felt the offer was not acceptable, he
participated in the brief conference call from the Postmaster's office.
Complainant has not presented evidence from which we can conclude that
he was disadvantaged by the agency's discretionary decision that he
did not need eight hours of administrative leave to participate in a
brief settlement conference call with an EEOC AJ who was aware that
complainant was taking the call from the agency facility. Accordingly,
we find that the complainant was not retaliated against by the agency
when management denied his request for eight hours of administrative
leave to prepare for and receive a conference call at his home.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
Order
RIGHT TO REQUEST COUNSEL (Z1199)
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:
May 6, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 Without explanation, the FAD rejected the AJ's conclusion that
complainant was perceived as an individual with a disability.
4 The Commission reminds the agency that consolidation of complaints
which are still in the investigative stage with complaints on appeal to
the Commission is improper.
5 A complainant may amend a complaint at any time prior to the
conclusion of the investigation to include issues or claims like or
related to those raised in the complaint. After requesting a hearing,
a complainant may file a motion with the administrative judge to amend
a complaint to include issues or claims like or related to those raised
in the complaint. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at
29 C.F.R. � 1614.106(d)).