• Also see EEOC ex rel. Tucker and City of Tempe Police Dept., # 350-A1-2326 (2002) in the Jan. 2003 issue.


Holding: Postal Service must issue backpay for the 312 hours of work the complainant missed while under suspension for failing to comply with an “unnecessary” fitness-for-duty psychological examination, and pay her $50,000 for non-pecuniary harm (prolonged mental anguish, depression, humiliation, insomnia, etc.) suffered as a result of the agency’s discriminatory action. Amen v. Potter, U.S. Postal Service, Appeal #07A10069, 2003 EEOPUB Lexis 53 (EEOC 2003).



U.S. Equal Employment Opportunity Commission


Cheryl M. Amen,



John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area)



Hearing Nos. 260-99-8204x; 260-99-8227x, and 260-99-8228x

Appeal No. 07A10069 

Agency Nos. 1-I-531-006-98;

1-I-531-0003-99, and 1-I-531-0028-99


2003 EEOPUB Lexis 53


January 6, 2003



Cheryl M. Amen (“complainant”) works for the United States Postal Service (“the agency”) at its Processing and Distribution Center in Milwaukee, Wisconsin. She began working as a mail handler on the dock there in March of 1991. In the summer of 1991, she was assigned to work in an area on the dock called the “Pref-Sawtooth.” Her main duties were to unload packages from a metal bin, carry them roughly 10 feet, and place them into a mail cart. She later bid for, and won, this position as her permanent “bid job.”


Over the next several years, complainant incurred various on-the-job injuries to her back, neck, and hands. These injuries purportedly imposed various physical restrictions upon complainant, such as an inability to lift or carry items over 50 pounds, to bend or twist at the low back, and to do fast-paced manipulative hand movements. As a result (and on the advice of her doctor), around 1995 she was assigned to work at her regular job on the Pref-Sawtooth for four hours each work day, and to work in a different sedentary job for the other four hours per work day.


On August 5, 1997, complainant reported alleged acts of sexual harassment by a male co-worker on the dock (“Co-worker”) to her supervisor (“Supervisor”). Roughly two weeks later, the agency gave complainant a permanent job offer -- essentially proposing to transfer her -- to a new position with duties which complainant claimed were inconsistent with her medical restrictions. Consequently, complainant turned this offer down. At the end of August of 1997, after Supervisor received a complaint from Co-worker against complainant, Supervisor removed complainant from her job on the dock and assigned her full-time to the “Tray Takeaway” area putting lids on tubs. Complainant claimed she could not do this work all day (since it aggravated her hand and back conditions), and eventually returned to doing her Pref-Sawtooth work on her own.


Over the next year, complainant was subjected to various forms of agency ostracism. Supervisor refused to allow her to change her schedule so that she could work on the Combined Federal Campaign (as she had done before). In October of 1997, Supervisor made a bet with a co-worker that complainant would be off the dock by the end of that month. Supervisor also yelled at complainant in front of co-workers about the sexual harassment complaint she had made. In August of 1998, at the request of Co-worker, another supervisor chased complainant off the dock when she was attempting to take a break there. Around the same time, the agency ordered her to undergo a fitness-for-duty exam, even though none of her permanent medical restrictions had changed. When complainant expressed reluctance at participating in the exam, it was canceled. The agency then suspended complainant, ordered her to leave the building, and told her she could not return to work until she submitted to the exam.


Complainant later filed several equal employment opportunity (“EEO”) complaints, alleging that many of these incidents constituted unlawful employment discrimination. More specifically, complainant claimed that the agency discriminated against her on the basis of her sex, disability, and in reprisal (for complaining about sexual harassment) by, among other things, (1) offering her a permanent job offer that was inconsistent with her medical restrictions; (2) transferring her to Tray Takeaway where she was required to perform work inconsistent with her medical restrictions; (3) berating her in public about her sexual harassment complaint; and (4) suspending her and ordering her to leave the building for refusing to take the fitness-for-duty exam. Complainant thus essentially argued that the agency had violated both Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. n1


The agency investigated these complaints, and complainant ultimately requested a hearing before an administrative judge with the U.S. Equal Employment Opportunity Commission (“EEOC” or “this Commission”). An administrative judge (“the AJ”) was then appointed to hear the matters, and a hearing on   complainant’s claims was held on April 6 and 7, 2000. A hearing on potential damages was held on September 28, 2000. Subsequently, on March 1, 2001, the AJ issued a ruling finding that complainant had not shown that she was discriminated against on the basis of disability (since she was not an “individual with a disability”), but had proven that the agency discriminated against her on the bases of her sex and in reprisal for engaging in protected activity. The AJ then ordered various forms of relief to compensate complainant for this illegal disparate treatment.


On April 4, 2001, the agency issued a final order (“FAO”) announcing the agency’s intention to implement the portion of the AJ’s decision finding that complainant had not been discriminated against on the basis of her disability. This FAO also informed complainant that the agency would not implement the AJ’s finding that complainant had been discriminated against on the basis of her sex and in retaliation for engaging in protected activity. Consequently, the agency filed a simultaneous appeal with this Commission challenging this part of the AJ’s ruling. Complainant also filed an appeal with EEOC, objecting to the AJ’s conclusion   that she was not an individual with a disability and had not been subjected to disability-based discrimination. We accepted these appeals, and are now issuing this written decision on these matters, pursuant to 29 C.F.R. § 1614.405(a).


We are charged here with reviewing any legal conclusions reached by the AJ de novo (or “anew”). See id. On the other hand, any post-hearing factual findings by the AJ are to be upheld so long as they are supported by substantial evidence from the record. Id.; see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (“EEO MD-110”), at 9-16. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) [citation omitted]. n2 Any finding on whether or not discriminatory intent existed “will be treated as a factual finding subject to the substantial evidence review standard.” EEO MD-110, at 9-16; see also Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).


 Thus, on appeal to this Commission, “the burden is squarely on the party challenging the [AJ’s] decision to demonstrate that the [AJ’s] factual determinations are not supported by substantial evidence.” EEO MD-110, at 9-17. In this case, this means that complainant has the burden of pointing out to us where and why the AJ’s factual findings with respect to disability discrimination are not supported by substantial evidence. Similarly, the agency has an obligation to show us how the AJ’s conclusions on complainant’s sex and reprisal claims fall short. Cf. id. (pointing out that “the appeals statements of the parties, both supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ’s] factual determinations are supported by substantial evidence”).


After reviewing all the record evidence and considering the relevant law, we see no reason to disturb the AJ’s findings of fact or conclusions of law on complainant’s sex and reprisal claims. There is ample evidence in the record to support the AJ’s factual finding that agency managers were motivated by sex-based and reprisal-based animus in treating complainant    disparately in a number of ways. The applicable law supports the conclusion that this disparate treatment was unlawful. Because complainant would not be entitled to any additional relief if she had also been discriminated against on the basis of disability, we need not review the propriety of the AJ’s findings on whether complainant was an individual with a disability, and on whether she suffered from unlawful disability-based disparate treatment. See, e.g., Cobb v. Department of Treasury, EEOC Appeal No. 01972195 (July 20, 2001), request for reconsideration denied, EEOC Request No. 05A11026 (Nov. 28, 2001).


However, we do believe there was a different sort of Rehabilitation Act violation committed by the agency -- but not addressed by the AJ -- here, in subjecting complainant to a fitness-for-duty exam. The AJ did find that “there was no reason for [complainant] to have to undergo an FFD,” and that “no FFD was necessary.” AJ’s Ruling (Mar. 1, 2001), at 7, 8. Yet the AJ never addressed whether subjecting complainant to an unnecessary fitness-for-duty examination itself (or suspending her for failing to participate in the exam) runs afoul of the Rehabilitation Act. It does.


Irrespective of whether an employee is an individual with a disability (as defined by the Rehabilitation Act), an agency may only make a disability-related inquiry or require a medical examination of such employee if the inquiry or examination is “job related and consistent with business necessity.” See 29 C.F.R. §§ 1630.13(b), 1630.14(c). We have defined this to mean that the agency must have “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.” Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (Jul. 31, 2002). The burden is on the agency to show that one of these criteria justifying the inquiry or examination was met. See id. In this case, the AJ concluded -- and we agree -- that the agency did not satisfy this standard. There was no legitimate reason for subjecting complainant to a fitness-for-duty examination -- or for suspending her for a period of time for not submitting to this illegitimate examination. By taking these actions, therefore, the agency violated the Rehabilitation Act.


Thus, because the agency violated both Title VII and the Rehabilitation Act, it must make complainant whole for the damages flowing from this illegal treatment. It is the decision of this Commission to affirm the portions of the AJ’s ruling and remedial relief related to the agency’s Title VII violations, to reverse the part of the AJ’s decision finding no violation of the Rehabilitation Act, and to require the agency to compensate complainant for its unlawful actions by complying with the ORDER below. n3


ORDER (C0900)


The agency shall take the following remedial action, to the extent it has not already done so, within sixty (60) days of the date this decision becomes final:


(1) Pay to complainant backpay (with interest, if applicable, and taking into account appropriate night pay differential and benefits) for the 311.87 hours of work she missed while being suspended for failing to comply with the unnecessary fitness-for-duty examination;


(2) Pay complainant $1,560 for the costs of therapy treatment necessitated by the agency’s discrimination;


(3) Pay complainant the precise cost of prescription medications for depression she incurred because of the agency’s discrimination;


(4) Restore to complainant 71 hours of annual leave and 240 hours of sick leave taken because of the agency’s discrimination;


(5) Pay complainant $50,000 for non-pecuniary harm (e.g., prolonged mental anguish, depression, humiliation, insomnia, etc.) suffered as a result of the agency’s discrimination;


(6) Provide a minimum of 8 hours of training to all relevant management personnel at the Milwaukee Processing and Distribution Center on their responsibilities under Title VII and the Rehabilitation Act, with special emphasis on the prevention, identification, and elimination of retaliation for engaging in protected EEO activity, and on permissible and prohibited pre- and post-employment medical examinations and inquiries;


(7) Evaluate how and why the particular discrimination against complainant occurred, and take any and all preventive measures necessary to ensure that neither retaliation, sex-based disparate treatment, unlawful post-employment medical examinations, nor any other prohibited form of employment discrimination happens at the Milwaukee Processing and Distribution Center again; and


(8) Post the attached notice, as provided in the paragraph below entitled “Posting Order,” notifying all Milwaukee Processing and Distribution Center employees that illegal workplace discrimination occurred, and guaranteeing them freedom from similar unlawful treatment.


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. 




The agency is ordered to post at   its Milwaukee Processing and Distribution Center 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 below entitled “Implementation of the Commission’s Decision,” within ten (10) calendar days of the expiration of the posting period. 




1. The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (“the ADA”) to complaints of discrimination by federal employees or applicants for federal employment.


2. The United States Supreme Court has explained that “substantial evidence” is “more than a mere scintilla . . . . It ‘must do more than create a suspicion of the existence of the fact to be established. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . .’ “ Universal Camera Corp., 340 U.S. at 477 [citations omitted].


3. As indicated below, we affirm the precise amount of backpay, restored leave, and compensatory damages ordered by the AJ -- even though our decision here announces an additional finding of discrimination (i.e., that the agency violated the Rehabilitation Act by subjecting complainant to an unwarranted fitness-for-duty examination). This is so, since the AJ already considered the effect of subjecting complainant to this fitness-for-duty examination in calculating the appropriate amount of equitable and compensatory damages due complainant.