Withdrawal of Offer of Employment

Wednesday, May 29, 2013

The EEOC's Office of Federal Operations (OFO) in the case of Cleckler v. Department of Defense, Appeal No. 0120091162 (March 15, 2013), found that Cleckler, a transportation assistant with the Department of Defense, was subjected to disability discrimination when the agency withdrew a tentative offer for a motor vehicle operator position. The agency contended that the reason for the withdrawal was due to the complainant's not "possess[ing] emotional and mental stability," due to his Post-Traumatic Stress Disorder (PTSD).

Cleckler was a veteran, and the agency considered his application under the Disabled Veteran Appointing Authority. On October 13, 2006, the Department of Defense offered him the position as a motor vehicle operator pending his successful completion of a medical examination, drug test, and security clearance. However, on October 20, 2006, the agency rescinded the job offer because the complainant failed the medical examination. The doctor who conducted the examination based her findings solely on Cleckler's medical records, and determined that Cleckler did not "possess emotional and mental stability."

Cleckler filed an EEO complaint on November 27, 2006. At the conclusion of the EEO investigation, the agency issued a Final Agency Decision. On review, the EEOC found that Cleckler was a "qualified individual with a disability," because he was otherwise qualified for the position pending the completion of his medical examination.

The EEOC further determined that the agency improperly determined whether Cleckler was a "direct threat" of substantial harm or injury to the health or safety of himself or others, based upon his PTSD. The EEOC explained that to exclude an individual based upon possible future injury, the agency bears the burden of showing a high probability of substantial harm. Moreover, whether the individual poses a significant risk must be based upon an individualized assessment 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. Importantly, this determination cannot typically be made merely on medical reports.

In evaluating Cleckler based upon the above test, the EEOC found that the Department of Defense did not demonstrate that hiring him would have posed a direct threat to his safety or that of those around him if he were hired. The EEOC found that there was nothing in the record that indicated that the agency evaluated the duration of any risk in hiring Cleckler, the nature and severity of any potential harm or risk, or the potential that harm would occur if Complainant was hired. The EEOC found it particularly troubling that the agency seemingly drew a "bright-line rule," that anyone with PTSD would be precluded.

As a remedy, the EEOC ordered the agency to offer Cleckler the position retroactive to October 20, 2006, with back pay and benefits, and to conduct a supplemental investigation on damages. The agency was also ordered to conduct EEO training and to consider appropriate disciplinary action against the responsible management officials.