07a40023
04-28-2006
Barry B. Bente, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barry B. Bente v. United States Postal Service
07A40023
04-28-06
.
Barry B. Bente,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A40023
Agency Nos. 4F-913-0129-01
4F-913-0052-02
4F-913-0093-02
Hearing Nos. 340-A2-3272X
340-A2-3811X
DECISION
INTRODUCTION
Following its November 7, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's imposition of a sanction for violating her
discovery order. The agency adopted the Administrative Judge's finding
of no discrimination with regard to its ordering the complainant to
submit to a fitness-for-duty examination. Complainant did not contest the
Administrative Judge's finding of no discrimination. For the reasons that
follow, we REVERSE the agency's order as it pertains to the imposition
of the sanction.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge abused her
discretion by issuing a sanction against the agency for failing to comply
with her discovery order.
BACKGROUND
Complainant worked for the agency for 37 years and retired on April 19,
2002. At the time of his retirement, he was the Postmaster in Duarte,
California. In 2000, complainant informed his supervisor, A-1, that
he intended to retire at the end of 2001. Following shoulder surgery,
complainant signed his retirement papers in March 2001. On June 24,
2001, he wrote A-1 indicating that he was indefinitely postponing his
retirement. On July 3, 2001, A-1 sent complainant a letter stating
that he was required to either provide medical documentation explaining
his continued absence from work since January 2001or make arrangements
to retire. Between July 2001 and December 2001, the agency was provided
information indicating that complainant was under the care of D-1, a
psychiatrist, and D-2, a clinical therapist, for depression. On December
6, 2001, complainant submitted a letter from D-1 that indicated,
among other things, that complainant was "on disability until January
2, 2002." On January 14, 2002, A-2, the District Medical Officer,
scheduled complainant for a psychiatric fitness-for-duty examination.
The examination was scheduled because complainant did not return to work
on January 2, 2002, and did not submit further medical documentation
in support of his absence. The record indicates that A-2 received the
results of complainant's examination on March 13, 2002.<1>
Believing that he was a victim of discrimination, complainant filed formal
EEO complaints against the agency involving, among other matters, his
being scheduled for a fitness-for-duty examination. At the conclusion of
the investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ). As part
of discovery, complainant requested a copy of the examination report;
however, the agency did not comply with his request. Subsequently,
the agency was ordered by the AJ to provide complainant with a copy of
the report. The agency objected on the grounds that the medical reports
could only be released pursuant to the agency's Administrative Support
Manuel Section 353.324(f) and Management Instructions EL-860-98-2.<2>
On July 9, 2003, the agency was ordered to provide the examination
results no later than July 28, 2003.<3> On July 21, 2003, the agency
filed a motion for reconsideration with the AJ again citing the same
provisions set forth in footnote 2. The agency also cited the Privacy
Act as a justification for not providing the examination results.
On August 2, 2003, the agency provided the documents to R-2, complainant's
representative, with a cover letter that recited the agency's policies
taped to both sides of the document. The cover letter, signed by
the agency's representative (R-1), stated that, �these guidelines
are mandatory and should be followed accordingly. As such, you must
release these records to [complainant's] physician and not directly to
[him].� R-2 stated at the hearing that he viewed the letter as a direct
threat to his job. As such, he refused to look at the documents himself
because the letter indicated that he could only release the report to
complainant's physician.<4> Hearing Transcript at page 278.
In her January 29, 2003 Acknowledgment Order, the AJ informed the parties
that the failure to comply with the orders of an Administrative Judge
could result in the imposition of sanctions pursuant to 29 C.F.R. �
1614.109(f)(3). In her July 9, 2003 Order on Motion to Compel, the AJ
further wrote:
In reviewing complainant's motion to compel, I noted that the agency
responded with blanket objections to every discovery request, many of
which were clearly not appropriate objections to the information sought.
Specifically, objecting to every discovery request on the grounds of
attorney/client privilege or attorney work product and the Privacy Act
is misplaced, and is extremely disingenuous with regard to many of the
discovery requests. This is distasteful discovery conduct at best.
Any further blanket objections asserted without a good faith basis by
the agency representative will be sanctioned by me or the presiding
administrative judge in the case.
After the hearing, the AJ on August 21, 2003, issued a decision finding
that complainant had not established that he had been discriminated
against in retaliation for engaging in protected EEO activity. The AJ
found that the agency articulated a legitimate, non-discriminatory reason
for scheduling the examination, i.e., complainant had not returned to
work as of January 2, 2002, and had not submitted medical documentation
to substantiate his continued absence. The AJ also found that complainant
did not establish that the agency's explanation was pretextual.
With regard to the agency's failure to comply with her discovery order,
the AJ found that:
The agency's reliance on its own manuals to thwart discovery in
this case is without justification. Even if the agency['s] manuals
somehow provided a basis for refusal to comply with the orders of an
administrative judge, the agency did not even show that it followed
its own internal regulations. The agency never came forward with
the name of the cited Postal Service records custodian, much less,
evidence that this person made any determination that the record could
not be disclosed to complainant per the EL 806, nor that the Postal
Service records custodian requested the name and addresses of the
employee's private physician, as required by the provision the agency
cited to justify denying complainant access to his FFD exam results.
The agency representative was clearly able to obtain a copy of this
restricted document in preparation for litigation, and the same should
have been true for complainant, without the undue delay that occurred,
and without the implied threat to complainant and his representative.
Finding that the agency acted in bad faith by not complying with her
initial order to provide complainant with the examination results,
the AJ found that the appropriate sanction was:
For an agency official to write to complainant and explain to him that
it failed to provide him with the justification it asserted for denying
him the FFD exam results; i.e., there was not correspondence or other
documentation provided to complainant stating who the postal service
records custodian is, that the Postal Service records custodian determined
that complainant would be harmed by the results of the FFD exam, or that
the Postal Service records custodian requested the name and address of
complainant's physician for release of the requested record, and that
therefore it was wrong in ordering complainant's representative not to
show the results to complainant.
AJ Decision at pages 16 - 17.
The AJ, noting that R-1 asserted throughout the proceedings that
the agency could rely on its policies to deny discovery requests for
psychiatric fitness-for-duty exam results to complainants in similar
situations, indicated that she would also notify the other administrative
judges in the Los Angeles District Office about the agency's conduct "in
order to prevent [R-1] from continuing to delay discovery in the manner
that occurred in this case." The AJ stated that further problems with
compliance with discovery orders in similar cases "will be sanctioned
more severely."
On appeal, the agency argued that the AJ abused her discretion by issuing
discovery sanctions against the agency and R1 because: (1) the agency
complied with her order; (2) she failed to provide the appropriate notice
regarding the sanction; (3) the agency did not act in bad faith in that
it submitted a copy of the report to the AJ, in camera, and permitted
her to provide the report to the complainant at her discretion; and (4)
the AJ did not have jurisdiction over the report.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
At the outset, we find that the AJ erred by analyzing this matter as a
claim of disparate treatment based on reprisal. The Rehabilitation
Act places certain limitations on an employer's ability to make
disability-related inquiries or to require medical examinations of
employees. The focus is on whether the agency's order that an employee
undergo a fitness-for-duty examination was job-related and consistent with
business necessity.<6> 29 C.F.R. �� 1630.13(b), .14(c). Generally,
a disability-related inquiry or medical examination of an employee
may be �job-related and consistent with business necessity� when an
employer has 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.<7> Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23. Upon review of
the record and the AJ's findings of fact, we find that the agency met
its burden of showing that the decision to order complainant to undergo
the examination was job-related and consistent with business necessity.
The record indicates that complainant had been out of the work place for
an extended period of time and had not provided an adequate indication
of when he would return. Based on the information that management
had received from D-1 and D-2, we find that the agency had a reasonable
belief, based on objective evidence, that complainant's ability to perform
the essential job functions of his Postmaster position could be impaired
by his medical condition. Accordingly, we find that the agency did not
violate the Rehabilitation Act.
With regard to the agency's first contention on appeal, we note the
agency's position that the report was available to complainant through
the procedures cited in its management instructions, but that it was
not provided with contact information regarding complainant's physician.
The agency also maintained that a copy of the report was provided to R-2.
We do not agree with the agency's position. First, we note the AJ's
determination that the agency never established that it complied with
its own regulations. Moreover, in his response to the agency's appeal,
complainant indicated that he specifically provided the agency with
information regarding how to contact his physician. He also noted the
fact that the agency contacted his physician previously, on October 15,
2001, by both telephone and fax. Despite this fact, the record indicates
that the agency made no effort to provide the report to complainant's
physician.
The AJ ordered the agency to provide complainant with a copy of the
report. The agency's position before the hearing, during the hearing
and on appeal, is that, due to its internal policies, it did not have
to comply with the AJ's order. In Matheny v. Department of Justice,
EEOC Appeal No. 07A00045 (December 6, 2002), the Commission held that,
�A party which �fail[s] without good cause shown to respond fully and in
a timely fashion to an order of an administrative judge, or requests for
the investigative file' is subject to the imposition of one of several
sanctions . . . . A showing that the non-complying party acted in bad
faith is not required.� Although the agency provided a copy of the report
to R-2, it did so under conditions that made it impossible for him to
give a copy to complainant. Therefore, we find that the agency did not
comply with the AJ's order.
With regard to its second contention, the agency, citing the
Commission's decision in Rountree v. Department of the Treasury, EEOC
Appeal No. 07A00015 (July 13, 2001) and the Equal Employment Opportunity
Management Directive (MD-110), 7-7, fn. 4 (November 9, 1999), maintains
that the AJ did not provide proper notice that: (1) sanctions may
be imposed; or (2) the type of sanction that was being contemplated.
We disagree. In her January 29, 2003 Acknowledgment Order, the AJ
informed the parties that the failure to comply with the orders of an
Administrative Judge could result in the imposition of sanctions pursuant
to 29 C.F.R. � 1614.109(f)(3). Moreover, the agency was advised of
the type of sanctions that could be imposed, e.g., the drawing of an
adverse inference, the exclusion of the agency's evidence, the issuance
of a decision fully or partially in favor of the opposing party or other
appropriate actions.
On August 13, 2003, at the close of complainant's case-in-chief, R-1
made a motion to dismiss the case based on the evidence presented.
The AJ, in denying the request, stated that she did not �know how any
sanction that I issue is going to factor in this case. If there is an
adverse inference that I draw because of the agency's discovery conduct,
then that might impact the outcome of the case.� Hearing Transcript at
pages 261 - 262.
On August 14, 2003, the second day of the hearing, the AJ provided both
R-1 and R-2 an opportunity to state their positions on whether or not the
agency had complied with her order that the agency provide a copy of the
fitness-for-duty examination report to complainant. Hearing Transcript
at pages 270 - 280. Specifically, they discussed the cover letter
that R-1 had attached to the report limiting R-2's ability to provide
a copy to complainant. R-1 set forth the agency's rationale that its
internal regulations prohibited it from providing a copy of the report
to complainant. R-2, noting the fact that the agency had the report for
more than a year and a half, accused the agency of threatening him if
he gave the report to complainant. R-2 mistakenly indicated that the
AJ had already sanctioned the agency about this matter. Subsequently,
the AJ made clear that sanctions had not been issued, but indicated that
they were still under consideration. Hearing Transcript at page 279.
Clearly, the agency was on notice that the AJ was considering the
imposition of sanctions. In effect, R-1 was asked to show cause as
to why sanctions should not be issued. His response was to set forth
the same rationale that had been provided throughout the discovery
process. R-1 was informed that the AJ was contemplating taking an
adverse inference against the agency; therefore, we find that a lesser
sanction, i.e., issuing a letter of explanation to complainant, would
not have prejudiced the agency in any appreciable manner. As noted in
Rountree, the Commission requires that �an offending party be provided
appropriate notice of possible sanctions, i.e., a notice to show cause
and what type of sanctions might be imposed.� We find that this was
done by the AJ.
The agency, in its third contention, maintains that the AJ abused her
discretion by finding the agency acted in bad faith especially when the
agency submitted the report to the AJ, in camera, and permitted her
to provide the report to the complainant at her discretion. The AJ
indicated on the record that she never ordered the agency to provide
the report to her in camera. Hearing Transcript at page 273. In fact,
she noted that her law clerk called R-1 and told him that he needed
to provide the documents as ordered. Id. Thus, providing the report
to the AJ appears to have been another attempt by the agency to avoid
complying with the AJ's discovery order.
The agency, in its fourth contention, argues that the AJ did not have
jurisdiction over the report. Specifically, the agency notes that
complainant filed an appeal with the Merit Systems Protection Board (MSPB)
regarding the voluntariness of his retirement. The AJ determined that any
harm resulting from the agency's failure to provide the report related
to the MSPB case, not the case before her. Although the AJ found that,
�[A]n adverse inference is not an appropriate sanction because any
adverse inference regarding the agency's failure to provide the exam
results cannot be logically connected to the reasons for scheduling the
FDD exam,� she determined that complainant was entitled to the results of
the examination in order to prepare for the case before her. We agree.
Conceivably, there might have been information contained in the report
that complainant could have used to rebut the agency's justifications
for ordering the examination. We also note the AJ's determination that
R-1 obtained a copy of the report in preparation for litigating the case;
therefore, we find it reasonable to conclude that the report should have
been provided to complainant, also.
Finally, we do not agree with the agency's characterization of the AJ's
discussions with her colleagues at the Los Angeles District Office as a
�personnel attack� on R-1. We note in this regard that, in a letter dated
August 29, 2003, the Deputy Managing Counsel (R-3) of the agency's Pacific
Area Law Department wrote the AJ that he ordered R-1 to, �[C]ontinue
objecting to release of the report during the hearing and to accept the
consequences of any properly made evidentiary sanction if the content
of the report was deemed relevant to the claims at issue.� R-3 went on
to state that, �I gave this directive with the concurrence of Managing
Counsel . . . .� We find it disingenuous for the agency to argue that the
AJ's actions are a �personal attack� on R-1. The agency has stated in no
uncertain terms that it believes that its regulations are superior to the
orders of the Commission's Administrative Judges. This is a policy that
is supported by the agency's legal advisors in the Pacific Area Office.
Therefore, we find it appropriate that the AJ in this case be allowed
to share her experiences with the other Administrative Judges in the
Los Angeles District Office about the agency's policy.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to Affirm the agency's final order in
part and to Reverse the agency's final order in part. The agency will
comply with the Order set forth below.
ORDER (C0900)
Within 30 calendar days of this decision becoming final, the agency is
ordered to take the following remedial action:
An agency official must write to complainant and explain: (1) why it
failed to provide him with the justification it asserted for denying him
the FFD exam results; (2) why he was not provided with correspondence
or other documentation indicating the identity of the postal service
records custodian; (3) whether or not the postal service records custodian
determined that he would be harmed by the results of the FFD exam; and
(4) whether the postal service records custodian requested the name and
address of complainant's physician for release of the requested record.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
______04-28-06____________
Date
1 Page one of the report states that:
It is strongly recommended that this report not be released to the
patient. It could be detrimental to the patient's mental stability since
patient's easily misconstrue or exaggerate what is written about them.
The possibility of this patient misunderstanding the terminology,
diagnosis and analysis should not be underestimated. The patient's
reading of this report could also impair treatment rapport with a treating
therapist. If the patient absolutely insists on knowing the contents
of this report, then a psychiatrist should evaluate and interpret the
result to the patient.
2 The Administrative Support Manual 353.324 (f) provides that:
Medical Records. Medical or psychological records (including those
received from the Department of Veteran Affairs, Public Health Service,
or Office of Worker's Compensation) when the medical officer determines
that disclosure could have an adverse effect on the subject individual.
These records may be made available, in which case a disclosure accounting
must be filed.
Management Instruction EL-860-98-02 provides, in pertinent part that:
As noted above, applicants or employees generally are granted access
to their own medical records. However, in response to an individuals
request for his or her own medical records, the Postal Service records
custodian has the discretion to postpone the release of such records.
If he or she determines that such release may cause hardship or danger to
the individual, the restricted medical records custodian shall request the
name and address of the employee's private physician and, if appropriate,
forward the records under sealed, restricted cover to that physician.
3 See AJ's July 9, 2003 Order on Motion to Compel.
4 Although R-1 indicated that R-2 could view the document, R-2, citing
fear of future acts reprisal declined. Hearing Transcript at page 280.
6The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (Enforcement
Guidance - Disability Related Inquiries), No. 915.002 (July 26,
2000); Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance
on Preemployment Disability-Related Questions and Medical Examinations
(Enforcement Guidance - Preemployment) (October 10, 1995). Because the
restrictions on employers with regard to disability-related inquiries
and medical examinations apply to all employees, and not just to those
with disabilities, it is not necessary to inquire whether the employee
is a person with a disability. Enforcement Guidance - Disability Related
Inquiries, p. 3.
7 A direct threat means a significant risk of substantial harm that
cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. �
1630.2(r).