01A11896
08-26-2002
Larry E. Womack, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Larry E. Womack v. United States Postal Service
01A11896
August 26, 2002
.
Larry E. Womack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A11896
Agency No. 4D-280-0033-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a City Carrier at the agency's Lafayette Station, Fayetteville,
North Carolina facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on March 17, 1997, alleging that
he was discriminated against on the basis of disability (back and knee
conditions) when he was ordered to go to the Employee Assistance Program
(EAP).
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its final decision, the agency concluded that complainant failed to
show that he is an individual covered by the Rehabilitation Act because
he did not show he has an impairment which substantially limits a major
life activity. The agency concluded, therefore, that complainant did
not establish a prima facie case of discrimination. Even assuming he
establish a prima facie case, the agency concluded that complainant did
not show that his supervisor's motives for referring him to the EAP were
discriminatory or that the reasons were a pretext for discrimination.
On appeal, complainant contends that the supervisor (S) who ordered
him to appear for EAP counseling gave false statements during the
investigation. He does not specify what statements in particular
were untrue. In addition, complainant states the agency's claim
that complainant was not forced to go to EAP was false because he
was escorted by a 204b supervisor to the EAP office against his will.
Complainant contends the record contained overwhelming evidence that
agency officials harbored a discriminatory animus against him based on
his disability. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As explained in the Commission's guidance governing disability related
inquiries, any employee is covered by the protections of the Americans
With Disabilities Act<1> against unlawful inquiries and medical
examinations not just individuals with disabilities. The agency
in requiring a medical examination or making a disability-related
inquiry must have reasons which are job related or consistent with
business necessity. EEOC Enforcement Guidance: Disability Related
Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act 7/27/2000 (Guidance). Whether the agency's order
that complainant report to the EAP constituted a disability related
inquiry turns on whether it was designed to elicit information about
a disability. Guidance at 2. A medical examination is a procedure or
test that seeks information about an individual's physical or mental
impairments or health. Guidance at 3.
Applying these definitions and principles, we conclude that the
agency's referral of complainant to the EAP is not a disability related
inquiry or a medical examination. The agency's description of the EAP
program is that it is a �formal, non-disciplinary program designed to
assist employees in recovering from alcoholism and drug abuse through
evaluation, counseling and/or referral to outside experts.� (Postal
Regulation 871.23). Employee inquiries to and participation in EAP
is kept confidential. (871.32) From this description, we conclude
that the program is not designed to determine whether an employee
has a disability through medical testing nor is it designed to elicit
information about a disability. See also Platt v. Department of Army
EEOC Appeal No. 01996724 (June 5, 2002) (EAP programs are confidential
programs designed to assist employees with personal issues that may
interfere with job performance). Because the information gathered
through the EAP program is kept confidential, it is not designed to
inform the agency whether the employee has a disability or a specific
medical condition. We also conclude from the record that the EAP is not
a medical examination because there is no indication that complainant
was evaluated by a medical professional and that the information was
shared with the agency's managers.
Complainant alleges that the agency's referral to the EAP program was
disparate treatment based on his disability. Assuming arguendo that
complainant has a disability within the meaning of the Rehabilitation Act,
complainant has not shown that the agency's reasons for requiring that he
report to EAP were a pretext for unlawful discrimination. According to
the record, S stated that complainant had been exhibiting mood swings
and that he acted as though he was �on something�. She contended
that complainant had not been acting normal. On the particular
day precipitating S's order for EAP counseling, S explained that she
observed complainant during his deliveries driving oddly, ignoring her
instructions to him and giving her disrespectful responses. On the day
complainant was escorted to EAP, she reported that complainant disrupted
the workroom floor by saying out loud �I'm crazy y'all, I'm going to EAP.�
Complainant did not refute any of this evidence or establish that S lacked
credibility in giving her reasons for requiring that he report to EAP.
We conclude therefore, that the agency had legitimate non-discriminatory
reasons for requiring that complainant report to EAP and that complainant
failed to establish a discriminatory motive by a preponderance of the
evidence.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2002
__________________
Date
1The 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.