0120122613
09-27-2012
James E. King, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
James E. King,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122613
Hearing No. 410-2011-00368X
Agency No. ARGORDON10AUG03877
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 9, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Police Officer, GS-0083-06, at the Agency's Directorate of Emergency Services in Fort Gordon, Georgia.
As a Police Officer, Complainant's responsibilities include physical and personal security operations, patrol duties, control desk duty, coordination with local courts and other crime prevention activities.
On or about July 22, 2010, Complainant suffered an on-the-job injury. Complainant received medical care from the Emergency Room (ER) at the Agency's medical center. The treating ER physician restricted Complainant from working for one day. The record further reflects that same day, Complainant filed a claim with the Department of Labor's Office of Workers' Compensation Program requesting Continuation of Regular Pay (COP). The record reflects that in accordance with the claim form, "COP [is] not to exceed 45 days and compensation for wage loss if disability for work continues beyond 45 days." Complainant's COP was scheduled to end on or about September 5, 2010.
Complainant did not return to work from July 22, 2010 to July 30, 2010. On July 27, 2010, Complainant's physician (P1) conducted a "return to duty assessment" examination. P1 diagnosed Complainant with bilateral knee contusions and left thumb sprain, and recommended continued bed rest at home. P1 noted that she would reevaluate Complainant again on July 30, 2010. While there was no reevaluation by P1 on July 30, 2010, Complainant nonetheless returned to work.
On August 17, 2010, Complainant was finally reevaluated by P1. P1 determined that Complainant's injuries were outside of her realm of knowledge. In an August 17, 2010 memorandum, P1 stated that Complainant "was seen for return to duty assessment today (appt 0803) regarding his injury (date of injury 22 July 2010). He will be referred for evaluation and possible treatment. At that time, a determination will be made as far as disposition. I recommend that he not continue to work on patrol at this time but if available, can do light duty. Light duty needs to be defined at the time of his consultation with Sports Medicine/Orthopedics."
At the time of the issuance of the above referenced memorandum, Complainant did not have an appointment at Sports Medicine. However, on September 1, 2010, Complainant was evaluated by Sports Medicine. In a CA-17 form dated September 1, 2010, the Sports Medicine physician (P2) checked the box "yes" indicating that Complainant was advised to resume work on September 2, 2010. However, P2 stated that Complainant could not perform regular work. Specifically, P2 limited Complainant to the following restrictions: sitting 5.5 hours per day; standing 5.5 hours per day; walking 2 hours per day; twisting 1 hour per day; and driving a vehicle 5.5 hours per day. Complainant did not submit the CA-17 to S1.
On September 1, 2010, Complainant telephoned S1 following his appointment. According to Complainant, he told S1 that P2 needed to review his x-rays before he could recommend light duty to P1. Complainant later sent an email to S1 stating that he would not return to work until September 7, 2010 because he was still having problems with his knees and thumb. By email dated September 2, 2010, S1 notified Complainant that hi COP ended on September 5, 2010, and he therefore cannot keep Complainant out on leave traumatic injury. S1 further stated that if Complainant is out on sick leave after September 5, 2010, he would need medical documentation. S1 stated that he expected Complainant to report to work on September 6, 2010.
The record reflects that Complainant did not report to work on September 1, 2, 6 and 7, 2010. On September 7, 2010, Complainant called in saying he would not come to work that day. Complainant requested annual leave because he did not have any sick leave, and S1 approved his request. Complainant did not return to work until September 10, 2010 because he was not feeling well. At that time Complainant contacted the office and left a message with an employee.
On September 10, 2010, Complainant returned to work but did not submit a leave request. Complainant also did not submit a medical documentation supporting his absences on September 2 or 6, 2010. The record reflects that when Complainant was questioned why he did not bring in a medical documentation for the subject dates, he stated "well, it wasn't three days so I didn't need a doctor's excuse." On September 11, 2010, S1 charged Complainant AWOL for September 1, 2 and 6, 2010 because his absences were not authorized.
The record reflects that Complainant filed a grievance concerning his three AWOL charges. On February 9, 2011, Complainant's second-level supervisor (S2) overturned the September 1, 2010 AWOL charge. Specifically, S2 determined that P1 returned Complainant to work on September 2, 2010, and Complainant was not required to take leave on September 1, 2010. However, S2 determined that because Complainant was released to work on September 2, 2010, he should have requested leave for his absences on two other days: September 2 and 6, 2010.
On October 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
a. on August 19, 2010, his first level supervisor (S1) contacted the Occupational Health Clinic to ask his physician to change his profile, and violated his Health Insurance Portability and Accountability Act (HIPAA) rights; and
b. on September 11, 2010, S1 charged him Absent Without Leave (AWOL) for the days that he was still on restricted leave due to his on-the-job injury.
Following the investigation, Complainant was provided with a copy of the report of investigation and a notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 25, 2012, the AJ issued a decision by summary judgment in favor of the Agency. On May 9, 2012, the Agency fully implemented the AJ's decision in its final action.
In her decision, the AJ found no discrimination. The AJ found that Complainant established a prima facie case of reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show a pretext.
AJ's analysis of claim (a)
Regarding claim a, the AJ noted that S1 called P1 to seek clarification of her August 17, 2010 memorandum because Agency management needed to know when Complainant was scheduled to go to Sports Medicine, if Complainant would be out of work until that appointment, and whether Complainant could return to desk type duties before the appointment. The AJ found P1's August 17, 2010 memorandum to be "vague and ambiguous. In comparison to her July 27, 2010, note, [P1] did not identify [Complainant's] restrictions. While one can clearly ascertain that [P1] wanted Sports Medicine/Orthopedics to further evaluate Complainant, the remainder of her note is not as clear."
The AJ noted that in her August 17, 2010 memorandum, P1 recommended that Complainant not continue to work on patrol at that time but if available can do light duty. The AJ determined that P1 did not restrict Complainant from performing other police officer duties prior to his Sports Medicine/Orthopedics appointment "nor [P1] specifically state that Complainant should not return to work until that specialty appointment." The AJ determined that one could reasonably infer that Complainant could return to duty "'at this time' as long as he did not perform patrol duties. However, this inference was not entirely clear because [P1] also wrote, 'Light duty needs to be defined at the time of his consultation with Sports Medicine/Orthopedics.' In light of the conflicting statements, both [S1] and [S2] were confused about exactly what [P1] recommended. Her medical documentation was insufficient."
Furthermore, the AJ determined that S1 and S2 had a good faith belief that P1's August 17, 2010 memorandum was insufficient and that it was appropriate for S1 to seek clarification from P1. With respect to Complainant's allegation that S1 violated his privacy rights by contacting P1, the AJ determined that the Agency did not violate Complainant's privacy rights and that the Commission does not have jurisdiction over HIPAA.
The AJ noted in his fact finding conference, S1 stated that after Complainant gave him P1's August 17, 2010 memorandum, he showed it to S2. S1 stated that S2 wanted to know when Complainant's appointment "was going to be, and he wanted me to ask the doctor if we could get him there sooner. He also asked me to ask the doctor if [Complainant] would have to be out of work until his appointment or if he could come in and do like blotter clerk or desk type duties until his appointment."
S1 stated that on August 19, 2010, he called P1 "as [S2] had asked me to do, and I told [P1] that I was apprehensive about calling her because we had been told that it was taboo for a supervisor to call the doctor when an officer has medical issues. But, because [S2] had asked me to do that, I called her and I asked her if she knew when the appointment was going to be. And she told me that she didn't. And I asked her that if we could get him over there as soon as possible because that's what [S2] had directed me to do. And so she said that she would but that, at that time, she didn't know when the appointment was going to be." S2 stated at that time P1 did not indicate that Complainant could come back to work and do light duty. S2 stated that later that afternoon, he called P1 again and asked her if Complainant could come in for Sadistic Acts Directed Against the Army (SAEDA) training that evening and "she said that she didn't see any problem with that, having [Complainant] come in for the SAEDA Training." S2 stated that he then called Complainant and "he came in for the training that night."
S1 stated that he reported to S2 what he and P1 discussed over the phone and "so then when I told him that [P1] said that there was certain things that he couldn't do, but he could possible to do other things and that she was going to talk to him about possibly going in and changing this, then he asked me to call her back." Specifically, S1 stated that S2 wanted him to call P1 back and "ask her can [Complainant] answer a touch screen phone and answer the phone with his right hand since it was his left hand that was injured, because [S2] wanted to get him back to work in some capacity, at least coming in for work, meaning not at home on leave traumatic injury, you know, just until the doctor's appointment, which at the time we didn't know when it was."
S1 stated that on August 20, 2010, he called P1 and asked her if Complainant could answer telephone calls. S1 stated that P1 told her that she had not been able to get in touch with Complainant and "that she had left messages for him and asked him to contact her about coming back in to see if they could get a sooner appointment and chance the excuse, and which she was unable to contact him and he wouldn't call her back or hadn't at that time returned her phone calls." S1 further stated that P1 told him that Complainant could answer telephone calls because "that didn't have anything to do with the injuries that he had and that she didn't see any medical reason why he couldn't at that time."
During his fact finding testimony, S2 stated after reviewing P1's August 17, 2010 memorandum, he instructed S1 to contact P1 and "to clarify what does "light duty" mean; what does that mean for a police officer?" S2 stated that S1 later informed him that P1 was unable to answer his questions. S2 stated that he then instructed S1 to call P1 and ask her if Complainant could answer phone calls with a touch screen telephone. Specifically, S2 stated at that time he wanted to employ Complainant and "I need to know if [Complainant] could answer the phone and be able to - - our radio is touch screen based, whether or not he could do that. Would that violate his profile of light duty."
The AJ noted that in her fact finding testimony, P1 stated that on August 19, 2010, S1 called her and asked her questions concerning her August 17, 2010 memorandum. Specifically, P1 stated that S1 asked her if Complainant could perform some light duty and she told him that Complainant "was awaiting evaluation." P1 stated at that time, she never told S1 that Complainant could return to work. P1 further stated that she does not recall discussing Complainant being seen by Sports Medicine and that she did not give S1 "a return date because [Complainant] had the follow up with Sports Medicine. I mean, he had been referred."
P1 stated that S1 called her back later that day and asked her if Complainant could participate in SAEDA training and "I said I didn't think it was unreasonable to ask him to participate in the training, but . . . that was something you would have to call him and ask him." P1 stated during the relevant time, S1 never asked her to make a change in her August 17, 2010 memorandum. Furthermore, P1 stated that S1 never asked her questions that would have violated Complainant's HIPAA rights.
AJ's analysis of claim (b)
Regarding claim b, the AJ noted that S1 originally charged Complainant with AWOL on September 1, 2, and 6, 2010, finding that Complainant had not requested or received leave for his absences. The AJ noted that the Agency later acknowledged that Complainant was not cleared to work until September 2, 2010, Therefore, the Agency reversed the AWOL charge for September 1, 2010.
S1 stated that he charged Complainant AWOL for September 1, 2010 "because he had his meeting with Sports Medicine on September 1 [2010], and he did not provide any documentation." S1 stated that Complainant called him that night and "advised me that he was reevaluated at Sports Medicine today and that they had advised him that he had torn something in his knees and they were going to keep him out of work. Okay. I asked him to bring me documentation so that I could keep him out of work. He advised me that they didn't give him any documentation for his profile." S1 stated that he never received any documentation for Complainant's absence on September 1, 2010.
S1 stated that on September 2, 2010, he sent Complainant an email placing him on notice that his COP will end on September 5, 2010 "so I can't keep you on leave traumatic injury. On the 6th of September you'll have to be out on your own leave. For you to be out on sick leave injury after September 5th, I'll need documentation from your doctor. You don't have approved leave for September 2nd." S1 further stated that on September 11, 2010, he asked Complainant "if he had a doctor's excuse, and he said 'no,' at that point, that's when I determined that I was going to charge him AWOL because he didn't have any doctor's excuses." The record reflects that S1 charged Complainant AWOL for September 2 and 6, 2010.
S2 stated that he supported S1's actions because he is the manager and "if he feels that his employee is AWOL, then his employee is AWOL until . . . there [is] some other documentation to support that he was not AWOL." S2 stated that after Complainant filed a grievance concerning his three AWOL charges, he overturned the September 1, 2010 AWOL based on his interpretation of Complainant's doctor's written note. S2 stated that because Complainant was released to work on September 2, 2010, he should have requested leave for his absences on September 2 and 6, 2010. Specifically, S2 stated "I made my decision that . . based on this, again, benefit of the doubt to the employee, the 1st is not charged AWOL. If [P1]'d have put return to duty on the 4th, then the 2nd wouldn't have been charged AWOL. So it's the interpretation of what's written. But this clearly says resume work on the 2nd." The record reflects that S2 upheld Complainant's September 2 and 6, 2010 AWOL charges.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant states "who would mark a police officer AWOL for an injury he occurred by performing their duties? Obviously this was a personal matter to [S1]. This was once again brought to my agency attention and nothing was done. One day prior to my EEO Fact finding hearing, the Chief removed one of the three AWOL days and he did not give me a reason."
Further, Complainant states that on December 19, 2009, he received his performance appraisal from S1. Therein, S1 gave him a "Meet Standard" and "added that I had been out sick 5 days on my rating. In which I know is reprisal for my involvement in an EEO concerning another officer on July 14 2009."
In response, the Agency requests that the Commission affirm the AJ's finding of no discrimination. With respect to Complainant's allegation that S1 retaliated against him when he issued him his 2009 performance appraisal, the Agency states that Complainant appeared to offer assertions of reprisal based motivation in the instant case by calling P1 and charging him with AWOL. The Agency further states that Complainant's 2009 performance appraisal allegation is the subject of a separate EEO complaint filed by Complainant, currently pending before an EEOC Administrative Judge.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
We find that the AJ properly issued a decision without a hearing, finding no discrimination. We determine that Complainant has failed to identify any genuine issues of material fact that require resolution through a hearing in this matter. The evidence of record fully supports the AJ's determination that Complainant did not prove, by a preponderance of the evidence, that discrimination occurred.
Accordingly, 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 action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 27, 2012
__________________
Date
2
0120122613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122613
10
0120122613