Christopher D. Cleckler, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120091162 Agency No. DLAN060419 DECISION On January 16, 2009, Complainant filed an appeal from the Agency's December 18, 2008, final decision 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency correctly determined that Complainant was not subjected to discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Assistant, GS-2102-05, at the Agency's Defense Distribution Center at the Anniston Army Depot, in Anniston, Alabama. On September 27, 2006, the Agency advertised the availability of a position of Motor Vehicle Operator (MVO) WG-5703-07, under Job Opportunity Announcement Number DDAA-06-122511. The announcement closed on October 5, 2006. Complainant applied for the position using the Agency's Automated Staffing Program. Complainant's application was considered by the Agency under the Disabled Veteran Appointing Authority. On October 13, 2006, a Human Resources Specialist (HRS) offered Complainant the position pending successful completion of a medical examination, drug test, and security clearance. On October 20, 2006, the Agency rescinded the job offer because Complainant did not successfully complete the medical examination. In support of this decision, the physician (Dr. T) who conducted an examination based solely on Complainant's medical records determined that Complainant was not medically qualified for the position because he did not "possess emotional and mental stability." On March 28, 2007, Complainant was advised by the U.S. Office of Personnel Management (OPM) that their office would not support the Agency's decision to "pass over" his application for the position due to his medical condition, because the Agency had not submitted sufficient documentation.1 On April 20, 2007, the Agency submitted another request to "pass-over" Complainant, and provided additional medical documentation. On July 24, 2007, OPM rendered a decision to sustain the Agency's decision to "pass over" of Complainant for the position at issue. On November 27, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (anxiety and depression) when on October 25, 2006, it withdrew the tentative job offer of employment for the position of Motor Vehicle Operator (MVO), WG-5703-07, advertised under Job Opportunity Announcement Number DDAA-06-122511. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In its FAD, the Agency found that Complainant acknowledged that the Department of Veterans Affairs (VA) diagnosed him with Post Traumatic Stress Disorder (PTSD) in March 2005. The Agency also determined that Complainant stated that his medical condition did not impact any major life activity. Complainant stated he was taking medication, but stopped sometime in 2006. The Agency found that there was no current documentation in the record with regard to Complainant's diagnosis, treatment, or prognosis. During the investigation, Complainant was asked to provide medical documentation that identified his medical condition; described his limitations; provided a prognosis; identified long-term effects; or provided any recommendations for an accommodation. Complainant stated that the only documentation he had was the VA letter, dated March 2005. The record also contained a letter dated March 17, 2005, from a Staff Psychologist (Dr. D), Department of VA Medical Center in Birmingham, Alabama. Dr. D. stated that Complainant was being treated at the outpatient mental health clinic. Dr. D provided that Complainant was being treated for symptoms of anxiety and depression and he would be returning for further evaluation and treatment to determine whether PTSD and/or other issues were also "a part of the clinical picture." Dr. D also provided that Complainant was currently employed as a materials handler and the VA had not "placed any restrictions on his current employment." The Agency found that a certificate from the VA dated May 18, 2006, demonstrated that Complainant was entitled to compensation for a service-connected disability rated at 30 percent or more. By letter dated July 28, 2006, the VA also informed Complainant that he "completed [his] Vocational Rehabilitation and Employment program" and was "rehabilitated." This decision was made because Complainant maintained employment for at least 60 days beginning in May 2005. The Agency found that Complainant established that he was a person with a disability because he had a record of a mental impairment (anxiety and depression). The Agency also found that Complainant was regarded as having a disability based on Dr. T's assessment that he was not medically qualified for the position. However, the Agency determined that Complainant failed to establish a prima facie case of disability discrimination because he failed to show that he was qualified for the position. Specifically, the Agency found that Complainant was medically disqualified from operating a motor vehicle and could not perform the essential functions of the position he desired with or without reasonable accommodation. Dr. T's evaluation indicated that Complainant lacked emotional stability. The Agency determined that this effectively eliminated him from being able to operate a government vehicle. The Agency further found that it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Dr. T provided affidavit testimony that her job is to determine if an applicant is medically qualified to perform all functions of the position. Dr. T medically evaluated applicants to determine if an applicant could perform all of the job requirements on the Standard Form 78 that is sent to her from the Human Resources office. According to Dr. T, she did not provide a medical clearance for the Complainant for the position of MVO because he did not meet the functional requirement of possessing emotional and mental stability. She disqualified Complainant for the position in question because he was medically not qualified for the position based on prior medical examinations. Dr. T maintained that having PTSD is an exclusion criterion for the duty position. The Agency determined that Complainant failed to demonstrate that the proffered reasons were a pretext for discrimination. Therefore, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his appeal brief, Complainant argues that he was subjected to discrimination. The Agency argues that Complainant was not medically cleared and therefore was not qualified for the position. The Agency requests that we affirm its FAD. ANALYSIS AND FINDINGS As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that he is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(j). We note, however, that the Agency determined in its FAD that Complainant had a record of or was regarded as having a mental or physical impairment that substantially limited his major life activities. Accordingly, we find that the Agency has conceded that Complainant is an individual with a disability under the Rehabilitation Act and that this matter is not at issue in the decision herein. Upon a finding that Complainant is an individual with a disability, the next inquiry is whether Complainant is a "qualified individual with a disability." 29 C.F.R. §1630.2(m). A "qualified individual with a disability" is one 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. We further find that Complainant is a "qualified individual with a disability" under the Rehabilitation Act. 29 C.F.R. § 1630.2(m). A review of the record indicates that Complainant was otherwise qualified for the MVO position because he was hired conditionally pending his completion of the medical examination. The Agency attempts to argue that Complainant was not qualified because he did not pass the medical examination. However, we note that the Agency admits that it denied Complainant employment because of his perceived inability to safely perform the functions of the position. Because the Agency determined that Complainant could not safely work as an MVO, we find that the Agency is stating that Complainant could not be hired because he posed a direct threat to himself or others. A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. § 1630.2(r). The "direct threat" evaluation must be based on an individualized assessment of the individual's present ability to perform the essential functions of the job. Id. If no such accommodation exists, the Agency may refuse to hire an applicant. Id. In the instant matter, the Agency must demonstrate that its decision to discontinue the hiring process of Complainant satisfies the "direct threat" standard. Therefore, we must analyze whether the Agency has satisfied its burden of proof to establish that Complainant posed a direct threat to safety. See Spencer v. Department of Treasury, EEOC Request No. 07A10035 (May 6, 2003). 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, for example, a high probability of substantial harm. A speculative or remote risk is insufficient. The Agency must show more than an individual with a disability seeking employment stands some slightly increased risk of harm. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). 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. 29 C.F.R. § 1630.2(r). See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of Rhode Island, Department of Mental Health Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). 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 information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. Inc. v. Echazabal, supra; Harrison v. Department of Justice, EEOC Appeal No. 01A03948 (July 30, 2003).2 We find that the Agency did not demonstrate that hiring Complainant would have posed a direct threat to his safety or that of those around him if he were hired. The record clearly demonstrates that the Agency was motivated by concern based upon fear of a future risk of injury. As noted above, Dr. T conducted a review of Complainant's medical records and determined that he was not medically qualified. According to Dr. T's affidavit testimony, she did not medical clear Complainant because she relied on the following facts: on February 23, 2005, when he first applied for a MVO position, Dr. T conducted a medical examination of Complainant. During that examination, Complainant stated that he had trouble with being in crowds of people, puts up a "guard", had verbal aggression towards his wife and three kids, and had physical aggression and abuse to dogs. Complainant stated that he had been seen by a local urgent care clinic and was prescribed an antidepressant, which he did not take. On February 24, 2005, Complainant stated to Dr. T that he felt no better than the day before, and she referred him to a community counseling center. At that time, Dr. T restricted Complainant from work with live ammunition. Dr. T placed the MVO examination on hold until additional information and diagnosis could be completed from the VA. On October 21, 2005, Complainant brought in paperwork from the VA regarding his psychiatric diagnosis. Dr. T testified that Complainant refused to provide her with the documentation or to read the documentation to her. Dr. T told Complainant that he could not qualify for the MVO position with a diagnosis of PTSD. Dr. T testified that Complainant stated, "I can snap, I will get you." Dr. T stated that she contacted security and documented the threat. Later, it was confirmed that the paperwork was a VA diagnosis of disability for PTSD. As a result of Complainant's subsequent diagnosis by VA, Dr. T. medically disqualified Complainant from the position. In so doing, Dr. T provided testimony that Complainant did not posses emotional and mental stability, which is a functional requirement to perform the MVO duties. Dr. T further stated that "Having PTSD is an exclusion criteria [sic] for the duty position." Dr. T stated in her affidavit "anyone who works in an extremely safety sensitive job position such as an MVO, security guard, chemical ammunitions worker, etc, who has been diagnosed with PTSD, they are medically disqualified from THAT [emphasis in original] particular job." The Agency has a legitimate concern regarding Complainant's ability to safely perform the MVO position; however, we find that the Agency did not meet its burden under the direct threat standard as required by the Rehabilitation Act. There is nothing in the record that indicates that the Agency evaluated the duration of any risk in hiring Complainant; the nature and severity of any potential harm or risk; the likelihood that the potential harm will occur if he is hired; or the imminence of any potential harm if he was hired. Rather, the record simply contains Dr. T's statement that Complainant was aggressive towards her and threatened her. We note that on the SF 78, Dr. T added as a requirement of the position that the incumbent "must possess emotional [and] mental stability." The SF 78 then shows that Dr. T concluded that Complainant was not medically cleared due to "mental instability [diagnosis] of PTSD." We find it particularly troubling that the Agency's doctor believed that a diagnosis of PTSD excluded all individuals from "sensitive job positions" without a further individualized assessment including the nature, severity, duration of the harm and likelihood that the harm would occur. Such a bright line rule, without any evidence to support it, further demonstrates that Dr. T was motivated by stereotypes of individuals with PTSD. We find that the Agency has failed to put forth sufficient evidence to show that Complainant could not perform the work in a safe manner. We further find that the Agency failed to establish that Complainant would have posed a direct threat to himself or others. Consequently, the denial of employment to Complainant violated the Rehabilitation Act. CONCLUSION Accordingly, after a careful review of the record, including the Agency's arguments on appeal and arguments and evidence not specifically discussed in this decision, the Commission REVERSES the Agency's final decision. The Agency will take the remedial actions set forth in the ORDER below. ORDER The Agency, within thirty (30) days from when this decision becomes final, shall: 1. offer to Complainant placement in a Motor Vehicle Operator (MVO) WG-5703-07, position, retroactive to October 20, 2006. Complainant shall be afforded fifteen (15) days to determine whether to accept the offer of reinstatement. Should Complainant reject the offer of reinstatement, his entitlement to back pay and benefits shall cease as of the date of rejection. 2. determine the appropriate amount of back pay, from the time Complainant should have been selected, with interest, and other benefits due him, pursuant to 29 C.F.R. § 1614.501, no later than 60 days after the date this decision becomes final. 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 60 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. conduct EEO training for all management officials involved in this case, including Dr. T, regarding their obligations under EEO statutes to avoid disability discrimination. 4. consider taking appropriate disciplinary action against the responsible management officials, including Dr. T. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages under the Rehabilitation Act. The Agency shall give Complainant notice of his right to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at http://www.eeoc.gov/policy/docs/damages.html), and Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The Agency shall complete the investigation and issue a final decision addressing the issue of compensatory damages within 150 calendar days after this decision becomes final. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision." 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 (G0610) The Agency is ordered to post at its Department of Defense, Defense Distribution Center at the Anniston Army Depot, in Anniston, Alabama, 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 (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (K0610) 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 77960, Washington, DC 20013. 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 (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 (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 (R0610) 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 (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 Office of Federal Operations __3/15/13________________ Date 1 According to the FAD, the term "pass over" refers to the process Agencies are required to follow when considering applicants who appear on a selection referral certificate in order of their veterans' preference status. 2 This assessment must be based on objective evidence, not subjective perceptions, irrational fears, patronizing attitudes, or stereotypes about the nature or effects of a particular disability or of disability generally. Boots v. U.S. Postal Serv., EEOC Petition No. 03A40060 (Dec. 13, 2004). Relevant evidence may include input from the individual with a disability, his work history or experiences in previous positions, and opinions of medical doctors who have expertise in the particular disability or direct knowledge of the individual with a disability. Id. Again, if it is determined that an individual does pose a direct threat because of his or her disability, the employer must determine whether a reasonable accommodation would eliminate the risk of harm or reduce it to an acceptable level. Id. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120091162 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120091162