0120112797
01-10-2012
Franz J. Maish, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Franz J. Maish,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120112797
Hearing No. 550-2010-00441X
Agency No. HS-10-CBP-005641-300505
DECISION
On May 5, 2010, Complainant filed an appeal from the Agency’s April
5, 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 deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
The record indicated that Complainant served in the U.S. Army and
completed four combat tours in Afghanistan and Iraq from 2002-2006.
In August 2007, Complainant was selected for employment with the
U.S. Border Patrol Agent assigned to the Agency’s El Centro Sector,
Calexico Station, California. Complainant successfully passed the
Academy at the Agency’s Federal Law Enforcement Training Center and
began working.
In May 2008, Complainant was diagnosed with Post Traumatic Stress Disorder
(PTSD) for symptoms he had prior to entering the Agency. On June 3,
2008, Complainant filed a claim with the Department of Veterans Affairs
for this service-connected disability.
Around July 2008, Complainant resigned from the Agency and moved to
Seattle, Washington, to care for his father and grandmother, who both
subsequently passed away.
In August 2008, Complainant applied for both a Customs Border Patrol
Officer (CBP) position and a Border Patrol Agent (BPA) position.
Complainant completed the pre-screening exams and, on September 25, 2008,
Complainant was sent a Notice of Tentative Selection for the CBP position.
The final offer for this position was contingent upon Complainant’s
timely submission of all the required forms and successful completion of
all pre-appointment requirements. For the CBP position, Complainant,
along with all other tentatively selected applicants, was required to
undergo a pre-employment medical examination. The Agency noted that
the position was a “frontline” position requiring the employee to
carry a weapon.
On October 13, 2008, Complainant submitted to a medical examination.
During the examination, Complainant indicated to the Agency’s Physician
that he had not been consulted or been treated for a mental condition.
Complainant only noted that he had a hernia and a broken hand. Further,
Complainant stated that he had never received or applied for pension or
compensation for an existing disability. Finally, Complainant informed
the Agency that he had not experienced any psychiatric/psychological
consultations or any other illness or injury other than those noted.
Based on the pre-employment processes, the Agency determined that
Complainant had successfully completed the process. As such, Complainant
was moved to the Training and Scheduling Unit to await placement
in an available funded vacancy. On March 18, 2009, the Agency sent
Complainant Notice of Tentative Selection for a BPA position. Rather
than have Complainant resubmit to a medical examination, the Agency
reviewed Complainant’s previously submitted medical examination.
Upon review, the Agency determined that Complainant had failed to
meet the vision requirement for the position. The Agency required that
Complainant provide documentation from his ophthalmologist or optometrist.
Complainant provided the documentation and the Agency found Complainant to
be medically eligible for the BPA position. The record also noted that
on November 2, 2009, Complainant provided a medical self-certification
form stating that other than a dog bite to his upper lip, there was no
change to his medical history provided in October 2008. Other than the
bite, Complainant claimed that he had not consulted nor been treated by
a psychological or psychiatric professional.
On February 26, 2010, the Agency received notice that Complainant had
filed a disability claim with the Department of Veterans Affairs and had
been awarded a 30% disability rating for his PTSD, a 10% rating for a
degenerative disc disease, and a 10% rating for tinnitus. The report
noted that Complainant was undergoing group therapy for his PTSD and
showed signs of anger management problems, mild depression.
On March 1, 2010, upon learning of the disability rating report, the
Agency notified Complainant that it would need additional information
regarding his PTSD and all other conditions in the report. Specifically,
as to Complainant’s PTSD, the Agency requested (1) a current mental
health evaluation by a psychologist or psychiatrist for his PTSD
history including past treatment records; (2) a copy of all treatment
records for review by the Agency’s Medical Review Officer; and (3)
a Practical Exercise Performance Requirements form for Complainant’s
medical provider to complete. On March 10, 2010, the Department of
Veterans Affairs Staff Psychologist (Psychologist) responded to the
Agency’s request indicating that Complainant’s PSTD with major
depressive disorder and that alcohol abuse was diagnosed on June 25, 2008.
The Psychologist provided information on Complainant’s treatment and
noted that Complainant entered a voluntary hospital stay from December
16-19, 2009. Complainant’s Physician provided the Agency information
regarding his chronic upper-mid back pain.
The Agency referred the documents to the Agency’s contract Medical
Officer (MO1) for review and recommendation as to whether the Agency
should hire Complainant. MO1 ultimately recommended that the Agency
not hire Complainant. MO1 found that Complainant likely qualified for
diagnosis of PTSD with major depressive disorder, alcohol abuse, and
bereavement due to the loss of his father. MO1 was particularly concerned
with Complainant’s failure to provide any information regarding the
December 2009 hospital stay. Based on his medical conditions, MO1 found
that Complainant should be disqualified for the positions in question.
The Agency provided the documentation to a second Medical Officer (MO2) as
to Complainant’s degenerative disc disease. MO2 found that Complainant
provided insufficient information regarding his high blood pressure
which was more of a concern for MO2 than his degenerative disc disease.
However, MO2 noted that if Complainant provided normal blood pressure
readings over three separate days and a treatment plan, MO2 would consider
Complainant for the position with the Agency. On March 19, 2010, the
Agency provided Complainant with a letter to obtain additional information
from his physician regarding his elevated blood pressure. The Agency
gave Complainant until April 16, 2010, to submit his response. Complainant
provided the documentation from his physician (Complainant’s Physician),
who indicated that Complainant’s high blood pressure would not adversely
affect his ability to perform the duties of either position.
On April 2, 2010, the Agency withdrew Complainant’s offers for
employment for both the CBP and the BPA position. In the withdrawal
letter, the Agency determined that Complainant did not meet the medical
standards of the positions based on the Agency’s concerns regarding
his multiple conditions and the effects they would have on the safe and
efficient performance of the law enforcement duties required for each
of the positions in question.
The Agency offered Complainant the option of requesting a waiver of
the medical standards. Complainant made such a request. On May 4,
2010, the Agency informed Complainant that the Waiver Review Board
met regarding the BPA position and denied Complainant’s request.
The Agency also noted that the Office of Personnel Management (OPM)
had the authority to make the final determination on the matter.
Complainant responded to the Agency’s Waiver Review Board decision on
May 18, 2010. The Agency referred the matter to OPM. On or about July
9, 2010, OPM notified Complainant that it concluded that his medical
condition presented an unacceptable safety and health risk.
On June 17, 2010, the Agency’s Waiver Review Board met regarding
Complainant’s request for a waiver as to the CBP position. Again,
Complainant’s request for waiver was denied. The determination was
referred to OPM. On August 3, 2010, OPM advised Complainant that it
concluded that Complainant was not medically qualified for the CBP
position.
Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the basis of disability (PTSD, depression,
alcohol abuse) when, on April 14, 2010, Complainant’s tentative offers
of employment were rescinded for the BPA position and the CBP position.
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 January 25, 2011,
motion for a decision without a hearing, and issued a decision without a
hearing on February 28, 2011. The AJ determined that the parties had no
dispute as to the facts of the case, but rather disagreed on the legal
and medical significance of documents presented in the case. As such,
the AJ found that summary judgment was appropriate in the case at hand.
The AJ held that Complainant failed to establish that he was qualified
for the BPA or CPB positions. Accordingly, the AJ determined that the
Agency had not violated the Rehabilitation Act when it rescinded the
tentative job offers.
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.
The instant appeal followed. On appeal, Complainant claimed that he
had passed all other examinations for the two positions and provided
sufficient medical documentation to show that he was qualified.
He asserted that the Agency acted on stereotyping and false assumptions
regarding his PTSD, depression and alcohol abuse to determine that he
presented an unacceptable health and safety risk.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no identified disputes of material
fact.
To bring a claim of disability discrimination, Complainant must show
that he is a “qualified” individual with a disability within the
meaning of 29 C.F.R. § 1630.2(m).1 A “qualified individual with
a disability” is a disabled individual who satisfies the requisite
skill, experience, education, and other job-related requirements of
the position and can perform the essential functions of the position,
with or without reasonable accommodation. Id.
The issue before the Commission is that the Agency found Complainant was
not qualified for either the CPB or the BPA positions. We note that
Complainant failed to bring forth his conditions during the medical
examinations when he first was accepted for the positions. The record
showed that Complainant was clearly asked about his medical history and
he neglected to inform the Agency of his PTSD and related depression,
his alcohol abuse or his back condition. The Agency learned of the
Complainant’s medical conditions when it received his disability
ratings from the Department of Veterans Affairs (VA). Based on the
VA’s information, the Agency had to gather medical information from
Complainant and reviewed the documentation. Based on MO1’s review,
the Agency determined that Complainant was medically unsuitable for the
position because of the Agency’s concerns with his PTSD, depression
and alcohol abuse. The Agency believed that Complainant’s conditions
would impact the safe and efficient performance of the law enforcement
duties required of both positions. Complainant was given ample time
to respond to the Agency’s request for documents and to respond
to the Agency’s determinations. Complainant submitted requests
for waivers which were denied by the Agency’s Waiver Review Board.
Those determinations were then forwarded to OPM as the final authority
on these matters. OPM notified Complainant that it concluded that
he presented an “unacceptable safety and health risk and is likely
to adversely affect [his] ability to perform the full range of duties
required for the position.” Complainant has not produced evidence
to challenge the determinations by the Agency and OPM on the impact
of his medical conditions. Accordingly, we find ample support for the
AJ’s determination that Complainant has not established that he was
a qualified individual with a disability and, therefore, cannot prove
that the Agency’s decision not to hire him was a violation of the
Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final action implementing the AJ’s finding of no
discrimination.
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 (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2012
__________________
Date
1 We assume, without so finding, that Complainant is an individual with
a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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