Floyd C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 0120121887 Agency No. USM20100002 On March 23, 2012, Complainant filed an appeal from the Agency's March 9, 2012, 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 VACATES the Agency's final decision and REMANDS the matter in accordance with the ORDER below. BACKGROUND The record reveals Complainant is a decorated veteran of the U.S. Marine Corps where he worked as a field radio operator from 2000-2004. In 2003, Complainant was deployed and spent approximately four months in the Marines during the invasion of Iraq, and was honorably discharged in August 2004. During the course of his service, Complainant was awarded five awards and commendations for his conduct in the Marines. In 2005, Complainant applied to the Veterans Administration for compensation related to his service-related disabilities, including Post Traumatic Stress Disorder (PTSD). At that time, Complainant sought and received psychological counseling at the VA Medical Center in Brockton, Massachusetts for PTSD. In January 2006, the VA assigned Complainant a 30% disability rating.2 From 2005-2008, Complainant attended regular psychotherapy with his therapist, a Licensed Clinical Social Worker (LCSW), with the exception of a short period of time when he was out of state. Complainant was also seen by his psychiatrist and was prescribed medications for his PTSD symptoms. Complainant stopped therapy in 2008. After graduating from college in 2008, Complainant worked for the Department of Veteran's Affairs as a Veteran's Service Representative, where he was responsible for reviewing veteran's service histories and determining benefit amounts. In 2009, Complainant applied for a position with the Agency as a Deputy U.S. Marshal. The position description for the Deputy U.S. Marshal position states that the incumbent is responsible for transporting prisoners, ensuring custody of prisoners, maintaining prisoners in custody throughout court proceedings, guarding jurors, executing warrants, and conducting all forms of searches of prisoners. The incumbent is required to carry a firearm. On December 4, 2009, Complainant was extended a conditional offer of employment, subject to a medical examination and background investigation. The Agency issued its "Medical Standards for U.S. Marshals," which state that, "A basic premise of federal employment is that employees must be fully qualified to safely and efficiently perform the essential duties and responsibilities of their positions without undue risk to themselves or others" ROI at Ex. 19. Furthermore, it states that: Any physical condition which would hinder an individual's full, efficient and safe performance of his/her duties, or failure to meet any of the required medical or physical qualifications, for employment are disqualifying, except when convincing evidence is presented that the individual can perform the essential functions of the job efficiently and without hazard to themselves or others. ROI at Ex. 19.3 Complainant was instructed to bring his VA rating decision to his medical examination, which he did. On January 30, 2010, Complainant was notified by the Agency's Medical Review Officer that a decision on his medical determination was deferred, and he was provided with the opportunity to submit a current evaluation of his PTSD. Therefore, on March 8, 2010, Complainant underwent a fitness-for-duty psychiatric evaluation at Massachusetts General Hospital. The Clinical Psychologist who examined Complainant diagnosed Complainant with a "Possible anxiety disorder NOS-mild (H/O PTSD)." The Clinical Psychologist recalled that Complainant suffered from moderate symptoms upon his return from duty, but currently "denied all symptoms of depression, reporting minimal symptoms of PTSD that would not yield a diagnosis of such." ROI at 000081. She added there was "no concern he could not perform any of the 'essential job functions' listed in the medical determination request by the U.S. Marshals with appropriate training from that organization." ROI at 000083. On March 31, 2010, the Agency's Medical Review Officer asked a Contract Psychiatrist to review Complainant's medical records and make a recommendation as to Complainant's qualifications for the position. As requested, the Contract Psychiatrist reviewed the following: the Agency's request for an opinion; Complainant's March 8, 2010 report; Complainant's treatment records from 2005-2008; the 2006 VA rating decision; as well as the Agency's report from its own medical examination. On April 16, 2010, the Contract Psychiatrist issued his own report and noted: At this time, in my opinion, [Complainant] is partially recovered. He continues to have some symptoms and is rated as disabled by the Veterans Administration (VA). In my opinion, he is likely to suffer sudden or subtle incapacitation in the performance of the tasks or duties of the Deputy US Marshal position. The medical basis for this conclusion is that he has been diagnosed with PTSD and anxiety which is not in full remission and for which he continues to receive disability benefits. Therefore, according to the record, [Complainant's] condition is not fully cured or even well stabilized (since some symptoms remain, albeit at a lower intensity). ROI at 000078. The contract psychiatrist continued by reporting that Complainant had stopped treatment and also opined that Complainant's PTSD would "likely affect his ability to cope with the potential stresses of law enforcement (including personal risk, arduous conditions, travel, sleep deprivation, possible use of firearms, skill in unarmed defense, and the need for sound judgment and reliability)." Id. On April 27, 2010 the Medical Review Officer adopted the contract psychiatrist's recommendation and completed a Medical Review Form, which found Complainant was not fit for duty. On July 15, 2010, the Chief of the Office of Operation Staffing, U.S, Marshals, notified Complainant his conditional offer had been revoked because he had been diagnosed with PTSD, "which exceeds the USMS threshold standards" and/or impacts his ability to perform the essential duties of the position. ROI at 000158. As a preference eligible veteran with a disability rating of 30% or more, OPM was required to review the decision. In July 2010, Complainant resumed treatment with his LCSW in order to deal with relationship skills and his remaining "moderate feelings of emotional numbing." Complainant submitted treatment notes from his LCSW and an updated report from the Clinical Psychologist to OPM. OPM in turn requested a second review from the Contract Psychiatrist. In a September 5, 2010 report, the contract psychiatrist noted that Complainant had resumed treatment with his LCSW, who reported that Complainant had gained "insight into his triggers and anniversary reactions, and put into effect appropriate coping skills." However, the contract psychiatrist further noted that Complainant suffered from "challenges from triggers and anniversary reactions, which indicated Complainant's condition is "not cured or fully stabilized." The contract psychiatrist opined that Complainant's disability would place himself and others at risk if Complainant worked as a U.S. Marshal. The Medical Review Officer adopted the report, and concluded Complainant was not qualified for the position. On September 17, 2010, OPM reviewed the Agency's decision and agreed Complainant was not qualified for the position, based on the medical reports. On October 24, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (PTSD) when, when on July 15, 2010, he received a letter from the United States Marshals Service informing him that he had been removed from the application process and would no longer be considered for the position of Deputy United States Marshal. 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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency assumed Complainant had a covered disability, but held that he was not a qualified individual with a disability because of his PTSD. The Agency found that Complainant was disqualified from the position because his PTSD was not fully controlled and that he could "suffer sudden or subtle incapacitation" while serving in the position. Moreover, Complainant's receipt of disability benefits further confirmed the finding that he was still having symptoms. Moreover, OPM confirmed the Agency's position when it determined Complainant was not qualified for the position. The Agency found that its disqualification finding was objective and reasonable. It maintained that the Contract Psychiatrist had extensive experience reviewing psychiatric backgrounds of applicants for law enforcement positions. The Agency asserts in its FAD that it reviewed the most recent medical reports when it made its individualized assessment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant asserts that the Agency has based its decision on unfounded fears and stereotypes, which are not supported by evidence in the record. The Agency found he was qualified when he was offered a conditional offer of employment. However, it failed to satisfy its burden of proving he is a direct threat to the safety of others because it did not conduct an individualized assessment which considered the likelihood, imminence and severity of the harm. Rather, the decision was based on generalized, outdated assumptions that he would suffer "incapacitation" because he was still assigned a disability rating and had "some symptoms" of PTSD. Complainant asserts he has never become incapacitated since his diagnosis, and that his symptoms were so minimal that the Clinical Psychologist could not even make a definitive PTSD diagnosis in March 2010. Complainant argues that the Agency failed to use the "best available evidence" because it only reviewed medical records, and did not consider Complainant's work history. Complainant contends that the Agency failed to conduct its own psychological examination, and the Agency's contract psychiatrist did not contact Complainant's providers to discuss his symptoms. Moreover, it impermissibly required Complainant to be 100% healed in order to be considered "qualified." In response, the Agency asserts that Complainant is not a qualified individual with a disability because it was determined, after an individualized assessment, that Complainant could not safely perform the essential functions of the Deputy U.S. Marshal position. Specifically, in 2010, Complainant was still reporting symptoms of PTSD. According to the Contract Psychiatrist, who has much experience conducting psychiatric evaluations of applicants for law enforcement positions, it was determined that the Complainants' symptoms would make it likely for Complainant to suffer incapacitation, since the physical and mental standards of the position were so high. Furthermore, the Agency maintained that further exposure to emotionally demanding positions such as those found in law enforcement, may pose a risk of relapse of symptoms which may have diminished since his diagnosis. 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"). In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, a Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired, i.e., can perform the essential functions of the position with or without accommodation; (3) he was subjected to an adverse employment action because of his disability; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The Agency does not dispute that Complainant is an individual with a disability. Therefore, 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. 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). With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement is job related and consistent with business necessity. The regulations provide that an Agency can meet this standard by showing that the requirement, as applied to the individual, satisfies the "direct threat" analysis set forth in 29 C.F.R. § 1630.2(r). 29 C.F.R. 1630 App. 1630.15(b) and (c); Nathan v. Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). 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. Here is where the dispute lies: Complainant asserts he can safely perform the duties of the Deputy U.S. Marshal, and the Agency finds that he cannot because of medical condition. In order to exclude an individual on the basis of future possible injury, the Agency must show there is a significant risk, i.e., a high probability of substantial harm; a speculative or remote risk is insufficient. The Agency must show more than that an individual with a disability seeking employment stands some slightly increased risk of harm. The burden of showing a significant risk is on the Agency. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Moreover, 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); Nathan v. Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013)(finding that as part of its individualized assessment, the Agency should examine adaptive or learned behaviors and prior work experience). After a review of the record, we find we are unable to determine from the record whether an adequate individualized assessment was accomplished. The Agency failed to secure testimony from its Contract Psychiatrist, who was the individual solely responsible for the agency's finding that Complainant was not qualified for the position. This finding was then adopted by other Agency officials, and for that reason, we find his testimony is necessary in this matter. Furthermore, we note that the Contract Psychiatrist failed to personally examine Complainant and did not contact Complainant's own providers. Instead, he simply relied on medical reports. The Commission also requires additional evidence from the Contract Psychiatrist as to the job duties and functions performed by a U.S. Marshal, and which on-the-job triggers he believes would lead to a "subtle incapacitation." The Contract Psychiatrist shall investigate and report as to whether complainant has ever suffered from this type of "subtle incapacitation" in the past, and provide an opinion as to the likelihood of one occurring, as well as the duration, nature, severity and imminence of one occurring. Like many cases, where there has been no hearing, there is a lack of important testimonial as well as documentary evidence in this record. This lack of evidence has lead to uncertainty in this case. In fact, the Agency acknowledged this case was a close call, and specifically stated so in its final decision when it remarked: Again, the fact that Complainant applied for a law enforcement position and the question of whether or not his PTSD was controlled turns this case. Based on this lack of certainty, the record as a whole fails to establish that Complainant was qualified applicant with a disability who was able to perform the essential duties of a DUSM without posing a danger to himself or others. (Emphasis added). This "lack of certainty" is highlighted all the more, when one considers new evidence on appeal from complainant's treating psychologist, who opines that currently, Complainant does not even have symptoms of PTSD which affect him. Complainant's history of service to the country coupled by his noticeable and documented improvement in a relevantly short period of time suggests that the Agency should have clarified or expanded its individualized assessment if there were any doubts as to its conclusion, with a personal examination by its own Contract Psychiatrist. Therefore, we order the Agency to conduct a supplementary investigation to address problems with the record. We also remind the agency that the Commission encourages settlement of EEO complaints at any stage of processing, and that the Agency shall make reasonable efforts to settle complaints. See 29 C.F.R. § 1614.603. 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 decision, and REMAND the matter to the Agency in accordance with the ORDER below. ORDER Within sixty (60) days from the date this decision becomes final, the Agency shall: 1. The agency shall secure an affidavit from its Contract Psychiatrist describing complainant's history of "subtle incapacitation," as well as any triggers that could result in such an incapacitation. The Contract Psychiatrist shall discuss: a) the duration of the risk; b) the nature and severity of the potential harm; c) the likelihood that the potential harm will occur; and d) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). The Psychiatrist shall also incorporate the essential job functions for which he concludes the effects of Complainant's disability would result in an incapacitation. 2. The Agency shall provide Complainant with the opportunity to respond and/or provide further evidence during the supplementary investigation. The Agency shall complete the investigation and issue a final decision addressing the complaint with appeal rights to the Commission within 150 calendar days after this decision becomes final. 3. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The Agency shall send a copy of the compliance report to Complainant. 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, Director Office of Federal Operations November 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's disability evaluation states: "An evaluation of 30 percent is granted whenever there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self care, and conversation normal) due to such symptoms as decreased mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). ROI at 000090. Complainant's PTSD was not permanent because there was a "likelihood of improvement." Id. 3 The Standards refer to both physical and psychiatric conditions and list examples of potentially disqualifying conditions. The psychiatric standards are concerned with "the presence of serious mental or emotional illness, which can adversely affect critical judgment and perceptive patterns necessary for safe performance of required law enforcement tasks. Any disorder which significantly affects normal perception, judgment, or safe and acceptable behavior; or if there is evidence of serious mental impairment, is disqualifying." ROI at Ex. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-1887 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120121887