U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Phoenix District Office

3300 N. Central Avenue, Suite 690

Phoenix, AZ 85012-2504

(602) 640-5000

TTY (602) 640-5072

FAX (602) 640-5071

Charge No. 350-A1-2326

Craig W. Tucker Charging Party

City of Tempe Police Department Respondent

120 East 5th Street

Tempe, AZ 85280

D E T E R M I N A T I O N

I issue the following determination on the merits of this charge.

Respondent is an employer within the meaning of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12101 et. seq. Timeliness and all other requirements for coverage have been met.

The Charging Party alleged that after he wrote to management asking questions concerning policy in February and April, 2001, Respondent requested that he voluntarily see the Respondent's psychologist. After Charging Party cancelled his initial appointment with the psychologist, he was ordered see the psychologist. During the psychologist visit on Apri119, 2001, he was escorted out of the office by three uniformed officers, placed on medical leave and ordered to see a psychiatrist. Respondent also sent an e-mail to all employees regarding Charging Party's fitness for duty. Charging Party alleged he was discriminated against due to Respondent's perception that Charging Party had a disability, in violation of the ADA.

Examination of the evidence showed that Charging Party was required to submit to psychological examinations to determine fitness and was subsequently placed on medical leave. Respondent stated that they required him to submit to the evaluations out of concern for the safety of the general public, Charging Party, and the safety of other employees. However, Respondent denied ever thinking that Charging Party had a disability. Charging Party received an above average performance evaluation during this critical time, showing that Charging Party was performing the essential functions of his job, without an accommodation. Further, when Charging Party's physician (psychiatrist) stated Charging Party was able to return to work, Respondent would not allow it until Charging Party retook the psychological evaluations and passed. The psychological evaluations would be performed by the same Respondent doctors who had previously tested him.

The Commission has previously determined that if an employer has a reasonable cause to believe an employee will pose a direct threat due to a medical condition caused by a disability, it can require the employee to submit to a psychological evaluation. In this instance, the Respondent required Charging Party to submit to psychological evaluations even though it did not consider the Charging Party to have a medical condition or disability. Respondent failed to provide any specificity that would justify their position or otherwise establish that he was a direct threat to anyone.

The Commission has also previously stated that continued efforts by an employer to require an employee to provide more documentation and/or submit to additional medical examinations could be considered retaliation. In this case, Charging Party's physician declared him fit for duty and Charging Party requested to return to work. Respondent required Charging Party to submit to additional medical examinations before approving his return to active duty.

Accordingly, I find that the Respondent regarded Charging party as having a disability and discriminated against him by requiring him to submit to a psychological examination, in violation of the ADA. I also find reasonable cause to believe that Respondent violated the ADA when it denied Charging Party's request to return to active duty and required him to submit to additional medical examinations after Charging Party's physician declared him fit for duty.

Upon finding that there is reason to believe that violations have occurred, the Commission attempts to eliminate the alleged unlawful practices by informal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resolution of this matter. The confidentiality provisions of the ADA and Commission Regulations apply to information obtained during conciliation.

If the Respondent declines to discuss settlement or when, for any other reason, a settlement acceptable to the office Director is not obtained, the Director will inform the parties and advise them of the court enforcement alternatives available to aggrieved persons and the Commission. A Commission representative will contact each party in the near future to begin conciliation.

On Behalf of the Commission:

AUG O5 2OO2

Date

Susan L. Grace

Charles D. Burtner

District Director