U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milford R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency. Appeal No. 0120120081 Hearing No. 570-2010-00234X Agency No. 2009PFPA041 DECISION Complainant timely filed an appeal from the Agency's October 4, 2011, 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).2 For the following reasons, the Commission VACATES the Agency's final order and REMANDS the matter for further processing. ISSUE PRESENTED Whether the AJ's grant of summary judgment was correct given the absence of: (1) an analysis as to whether the Agency's qualification standard is job related and consistent with business necessity; (2) whether the agency's medical requests for periodic blood testing and neuropsychiatric examination were legitimate; and (3) whether complainant established that he was subjected to harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Pentagon. On June 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability3 (HIV infection) and reprisal for prior protected EEO activity when: 1. on November 25, 2008, he was informed that, effective December 5, 2008, he would be reassigned to the Pentagon Police Communication Center in a light-duty status; 2. beginning on March 6, 2009, he was repeatedly instructed to call the Walter Reed Army Medical center to schedule an appointment even though he was unsuccessful in his attempts to schedule the appointment; 3. on March 20, 2009, the name of a well-known specialist to whom he was referred at Walter Reed Army Medical Center was disclosed in an e-mail confirming his appointment, which advised recipients of his medical condition; 4. on July 6, 2009, he was advised by Pentagon Force Protection Agency (PFPA) management that the Medical Review Board (MRB) would be monitoring his health condition, and ordered to provide complete private medical information; 5. on September 29, 2009, he was issued a memorandum by the PFPA Occupational Medical and Fitness Program Manager requesting he undergo a neuropsychiatric evaluation. Complainant also alleges he was subjected to harassment based on his physical disability (HIV infection) and reprisal (for engaging in the EEO process) when: 6. on March 24, 2009, he was referred for a mental evaluation; and 7. on June 18, 2009, in response to an e-mail notification advising that he could return to full duty, Deputy Chief refused to return him to full duty, stating "This is still to be discussed at the next MRB" and "There is work to be done yet...." 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 1, 2010, motion for a decision without a hearing, and issued a decision without a hearing on August 10, 2011. The AJ found the following facts: As an Agency police officer, Complainant was subject to the Agency's Pentagon Force Protection Agency (PFPA) Occupational Medical and Physical Fitness Program (OMP). The AJ found that this policy, approved by the U.S. Office of Personnel Management, ensures that Agency police officers are able to satisfactorily perform the full range of their essential police duties without undue risk of harm to themselves or others. Pursuant to the policy, all Agency police officers undergo annual medical examinations by a Medical Review Officer (MRO) to ascertain whether the individual police officer continues to be both medically and physically qualified to perform the essential functions of the position without undue risk of harm. If the MRO determines that the employee cannot perform the essential duties without undue risk of harm to themselves or others, the Agency requests further medical documentation and convenes the Medical Review Board, which reviews the reports and makes a decision. Report of Investigation (ROI) at p. 368. The AJ found that, during the course of his September 2008 medical examination, Complainant self-disclosed his HIV status. The Agency requested from him additional information from his medical provider to ascertain whether his condition would present an undue risk to himself or others in the performance of his duties. Specifically, on September 24, 2008, Complainant was advised to provide his "Diagnosis, prognosis, and risk to others given his position as a Pentagon Police Officer." Results of Lab studies." ROI at p. 473. The AJ found no dispute in the record that Complainant failed to provide the requested information; thus, the Agency requested that he undergo an Independent Medical Examination (IME). In the interim, Complainant was assigned a light-duty position. Complainant asserted that he had difficulty arranging his IME; however, the AJ found that any delay in scheduling the IME was due to Complainant's mishandling of the situation. The IME returned Complainant to full duty, with the restriction that he be subjected to periodic monitoring. The AJ found that, on July 2, 2009, the Agency's Medical Review Board (MRB) returned Complainant to full duty, as long as he complied with the blood tests recommended by the IME. The AJ found that the only individuals who were aware of his condition were those needed to excuse him from his regular duty and therefore the Agency did not unlawfully disclose his medical information. The AJ found that Complainant failed to present evidence disputing the Agency's reason for its action, or any other evidence of discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant asserts the Agency engaged in prohibited medical inquiries when it asked him what medications he was on during his physical examination, and repeatedly asked him for medical documentation when his physician had already spoken personally with the Agency, and after he had already provided sufficient medical information from his own physician. Complainant asserts that the medical examination, IME, and neuropsychiatric examination were not job-related and consistent with business necessity. Complainant also contends that the Agency impermissibly monitors his medical condition, and that he was harassed when he was told to look for a new job. In response, the Agency asks that we affirm its final order. The Agency maintains that there is no dispute that Complainant failed to provide medical documentation, which was requested as part of its lawful Occupational Medical Standards Program. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (August 5, 2015) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Summary of Findings After a review of the record, we find the AJ erred in his analysis of the case, which only focused on whether Complainant had presented evidence of pretext. Here, the Agency relied on the application of a medical standard which resulted in repeated medical inquiries and reassignment due to the diagnosis of HIV. There was no analysis of whether this medical standard was job-related and consistent with business necessity. This issue should be developed at a hearing. We further find that there is a dispute in the record as to whether the Agency conducted medical inquiries that were job-related and consistent with business necessity, and whether those inquiries were based on objective evidence. We find that the AJ failed to respond to Complainant's allegation that he was forced to undergo a neuropsychiatric examination and periodic blood testing, which should also be addressed on remand. Finally, we note that the Agency's investigation did not secure a meaningful affidavit from the individual whom Complainant alleged had subjected him to harassment, and so we are unable to assess Complainant's allegation of harassment. Qualification Standard The Rehabilitation Act prohibits a covered entity from engaging in discrimination against a qualified individual on the basis of disability in, among other things, hiring. 42 U.S.C. § 12112(a). Such discrimination includes "using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability ... unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. Id. § 12112(b)(6); see also 29 C.F.R. § 1630.10 (making unlawful a covered entity's use of qualification standards that screen out or tend to screen out an individual with a disability unless such standard is job related and consistent with business necessity). The regulations define "qualification standard" as "the personal and professional attributes, including the skill, experience, education, physical, medical, safety, and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. § 1630.2(q). The record reveals that Complainant is subject to the Agency's Pentagon Force Protection Agency (PFPA) Occupational Medical and Physical Fitness Program (OMP) and PFPA Medical Standards. The medical standards, as described in the Agency's Report of Investigation, delineate what "medical problems may hinder the individual's ability to satisfactorily perform their full range of essential functions without undue risk to himself/herself or others." ROI at p. 439. Relevant to Complainant, is an infectious disease standard, which includes HIV/AIDS. It states: The position of police officer is dangerous and physically demanding, it requires the carrying and use of firearms, immediate response in emergency situations and the rescue of victims under attack. Any candidates or incumbents that have a positive HIV status or AIDS will require additional screening to determine whether they will be able to safely and successfully perform essential duties without presenting a significant risk of substantial harm to the health of themselves or others. Cases will be reviewed on a case-by-case basis. ROI at p. 318 and 450. During the course of Complainant's September 2008 examination, Complainant was asked about his medical condition and whether he was taking any medication. The record reveals that Complainant responded by disclosing his HIV status. The Agency maintains that, pursuant to its medical program, Complainant did not meet the Agency's prescribed medical standard and therefore was placed on light-duty immediately. In the instant case, we find there is a dispute in the record as to whether a simple diagnosis of HIV requires additional screening and reassignment in the absence of objective evidence that the employee was having problems performing the essential functions of the job. Medical Inquiries and Independent Medical Examination The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquiries or require medical examinations of employees. The inquiry may be made or the examination ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). Generally, a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has 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. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, EEOC Notice No. 915.002, Question 5 (July 27, 2000). 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 impair her ability to perform essential job functions or will pose a direct threat. 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. Id. Pursuant to the Agency's policy described above, Complainant was asked to bring in medical documentation regarding his "Diagnosis, prognosis, and risk to others given his position as a Pentagon Police Officer. Results of Lab studies." ROI at p. 473. According to the AJ, Complainant failed to provide the requested medical documentation, so the MRB ordered an IME, which took place on May 26, 2009. The AJ found that the Agency's request for further medical documentation and an IME were warranted because the requests were pursuant to the Agency's medical standard, and because Complainant failed to provide the requested medical documentation. However, we find there remains a dispute regarding whether the Agency's decision to issue Complainant multiple medical inquiries and then order him to undergo an IME was reasonable given the lack of objective evidence that Complainant experienced any issues related to the performance of his essential job functions. Moreover, there is evidence in the record from Complainant's physician clearing him to work.4 The decision to require an IME was even more questionable, in light of the Agency's Medical Officer's phone conversation with Complainant's physician, who informed the Agency that Complainant was in HIV Stage 1, and later followed up to report that he was followed every three months, that his CD4 and Viral Load counts had improved, and that he had had no side-effects with the medications. (ROI at p. 476). Despite this evidence in the record from Complainant's physician clearing him to work, the AJ credited the Agency's position, and found "no dispute" that Complainant failed to provide the relevant medical documentation. The question of the reasonableness of the Agency's inquiry, as well as the evidence that Complainant may have satisfied the Agency's inquiry prior to the IME should be addressed at the hearing. Periodic Monitoring and Neuropsychiatric Examination Confirming Complainant's own physician's opinion, the results of the IME recommended that Complainant be returned to full duty, as he had no opportunistic infections, and was fully able to perform his job without direct threat to anyone. Nevertheless, the physician who conducted the IME recommended that additional periodic monitoring of Complainant be performed to ensure that Complainant could continue to safely and effectively perform his assigned duties. Specifically, the IME physician determined that Complainant, a civilian, was subject to "Army Regulation AR 600-110 (Identification, Surveillance and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV)." Accordingly, he recommended that Complainant provide a CD4 blood test and staging-testing every six months. (ROI at P.p. 174-177). The physician also remarked that a psychiatrist would be in the best position to assess any "neurocognitive defects" which may be present due to his HIV infection. Accordingly, the Agency ordered Complainant to undergo the additional blood monitoring and a neuropsychiatric examination. See ROI at p. 174. The AJ erred by failing to address Complainant's claims that he was ordered to undergo a neuropsychiatric examination as well as periodic testing of Complainant's blood every three months. In that regard, we note there is no evidence to support the application of an Army Regulation which requires routine surveillance of soldiers with HIV, since Complainant is a civilian employee, and not in the military. See ROI at p. 629. Moreover, we do not find sufficient evidence to support the periodic testing of Complainant, since the Agency's own IME determined Complainant was not direct threat to anyone, nor was there any objective evidence he was having problems performing the essential functions of the job. The Agency will have to address these significant concerns at the hearing. As to the neuropsychiatric examination, we find a dispute in the record as to whether there was sufficient objective evidence to support the medical inquiry. Harassment Finally, Complainant also alleges the Agency's contract physicians harassed him about his disability, and told him he should look for a new job, and become an activist. ROI at p. 00109. We find the AJ erred in failing to address this allegation. Moreover, the record does not contain testimony responsive to Complainant's allegations from these individuals. See ROI at p. 537. Accordingly, there is a dispute in the record as to whether the contract physician made the statements in question. On remand, the record will need to be further developed in this regard. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND the matter in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Washington Field Office a request for a hearing, within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on Complainant's claims in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 12-3-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant filed an appeal and asserted that the Agency failed to timely issue its final order within forty days from the date of the Administrative Judge's (AJ's) decision. 3 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. 4 The record contains a response from Complainant's physician dated September 30, 2008, which stated that Complainant was able to work in his job at full duty. On October 2, 2008, Complainants' physician reported that Complainant is cleared to work without any medical restrictions. On December 3, 2008, Complainant's physician advised that Complainant is under treatment for HIV, which is under control. On January 27, 2009, Complainant's physician remarked that Complainant was diagnosed with HIV Stage 1 and follows up every three months in his office. He added that Complainant's CD4 and Viral load count has improved. ROI 236-239. In April 2009, Complainant's physician reported the medications Complainant was taking but reiterated he was able to return to work full time. ROI at p. 240. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-0081 2 0120120081