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:
Date
Charles D. Burtner
District Director