Linda C. Jutras, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionDec 20, 2001
01992623 (E.E.O.C. Dec. 20, 2001)

01992623

12-20-2001

Linda C. Jutras, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Linda C. Jutras v. United States Postal Service (Northeast Area)

01992623

December 20, 2001

.

Linda C. Jutras,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 01992623

Agency No. 1-B-029-0014-97

Hearing No. 160-98-8046X

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges she was discriminated against on the bases of

disability (unspecified) and reprisal for prior EEO activity under the

Rehabilitation Act when:

(1) on February 8, 1997, her Supervisor informed other management

officials, male co-workers, and the Postal Inspector that they could

put her �in shock� because she lost her EEO complaint;

on April 9, 1997, she was placed on administrative leave pending a

fitness-for-duty examination;

on May 20, 1997, she was ordered to sign a Last Chance Agreement or

be terminated.

For the following reasons, the Commission affirms the agency's final

decision.

The record reveals that complainant, a Flat Sorter Clerk at the agency's

Providence Processing and Distribution Center, Providence, Rhode Island,

filed a formal EEO complaint with the agency on May 27, 1997, alleging

that the agency had discriminated against her as referenced above.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of disability or reprisal discrimination. Specifically, the AJ

found that complainant failed to establish reprisal in that she failed

to show that her prior EEO activity was causally connected to the

adverse employment actions alleged in the instant complaint. The AJ

further concluded that complainant failed to establish a prima facie

case of disability discrimination as she is not a qualified person with

a disability as defined by the Rehabilitation Act. The AJ found that

the preponderance of the evidence indicated that complainant could not

perform the duties of her position, or any other within the agency,

without posing a significant risk of substantial harm. Noting the

severity, longevity, and nature of the risk posed by complainant, the

AJ found that no reasonable accommodation was available to eliminate or

reduce the risk. Therefore, the AJ issued a finding of no discrimination.

The agency's final decision implemented the AJ's decision.

On appeal, complainant contends that the AJ erred in issuing a finding

of no discrimination. Complainant argues that she does not have a

disability, and is not a threat to herself or others. She further

contends that the report from the agency's psychiatrist contains numerous

fabrications and that she never requested reassignment to less crowded

locations. In addition, she reiterates her contentions that she has

been threatened and assaulted by co-workers, subjected to �vicious

rumors,� placed under surveillance by management, and had a tracking

device implanted in her vehicle.

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 judgement a court does not

sit as a fact finder. Id. The evidence of the non-moving party must be

believed at the summary judgement stage and all justifiable inferences

must be drawn in the non-moving party's favor. Id. A disputed issue of

fact is genuine if the evidence is such that a reasonable fact finder

could find in favor of the non-moving party. Celtotex v. Carett, 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 judgement is not appropriate.

In the context of an administrative proceeding under Title VII, an AJ may

only properly consider summary judgement after there has been adequate

opportunity for development of the record. Our review of an AJ's legal

determinations and the decision to issue a decision without a hearing

pursuant to 29 C.F.R. � 1614.109 (g) is based on a de novo standard of

review. See EEOC Management Directive 110 (MD-110) Chapt. 9-16 (1999).

Here, assuming, arguendo, complainant has set out a prima facie case

of disability discrimination, the analysis may proceed to the issue

of whether the agency has satisfied its burden of proof to establish

that its disparate treatment of complainant based on her disability was

justified by a direct threat to safety. Van Parys v. United States Postal

Service, EEOC No. 01991100 (August 10, 2001). A direct threat is defined

as a significant risk of substantial harm which cannot be eliminated

or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). As we

have previously noted, the agency cannot exclude qualified individuals

with disabilities from employment based upon fear of a future risk of

injury. Zarate v. United States Postal Service, EEOC Appeal No. 01A00415

(January 8, 2001); Holmes v. United States Postal Service, EEOC Appeal

No. 01977073 (October 20, 2000). Rather, the agency must make an

individualized assessment of whether the individual poses a direct threat

of substantial harm, taking 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. 29 C.F.R. � 1630.2(r); Massingill v. Department of Veterans Affairs,

EEOC Appeal No. 01964890 (July 14, 2000); Selix v. United States Postal

Service, EEOC Appeal No. 01970153 (March 16, 2000).

In the instant case, the record reveals that the agency did make an

individualized assessment as to the potential threat posed by complainant.

The undisputed evidence establishes that complainant has a history of

verbal confrontation with coworkers, and has, on numerous occasions

made serious accusations against them which have been investigated

by the agency and found to be groundless. The agency stated that as

the incidents escalated and began to disrupt the workplace and other

employees, management transferred complainant to another location

which afforded her the same schedule but required less interaction with

co-workers. The agency states that complainant was also given access

to a phone so that she could call her son or doctor when needed, and

that complainant approved of this arrangement. The agency contends that

despite these changes, complainant continued to have outbursts and make

accusations against other employees. On April 9, 1997, a meeting was

held with complainant and management to discuss the terms of a previous

settlement agreement and to address a diary of alleged incidents that

complainant had sent to the union. The agency states that complainant

became upset and agitated during the meeting and it became necessary to

escort her from the premises and place her in off-duty status, pending

a fitness-for-duty examination.

The subsequent fitness-for-duty evaluation report includes statements made

by complainant in which she threatens to kill certain co-workers, predicts

future bomb threats, and makes numerous �paranoid misinterpretations of

events around [her].� (R.O.I. page 74). Additionally, the report states

that with proper psychiatric care complainant would be fit for duty,

however her condition may lead to a �future situation of some potential

danger.� (R.O.I. page 74). In light of the results of the examination,

complainant was presented with a Last Chance Agreement, on May 20, 1997

which would have allowed her to return to work. Complainant refused to

read or sign the agreement, though, despite being given an additional week

to review it. The agency then issued complainant a Notice of Removal,

based upon her �hostile and threatening� behavior, past confrontations

with co-workers, and the results of the fitness-for-duty evaluation.

Complainant has adduced no persuasive evidence to show that these

legitimate, non-discriminatory reasons for the agency's actions are mere

pretext to mask retaliation or discriminatory animus toward complainant's

disability.

We note that an employer may not make disability-related inquiries, or

require a medical examination of any employee, unless the examination

is job-related and consistent with business necessity. See 29 C.F.R. �

1630.14(c); see also EEOC Enforcement Guidance: Disability - Related

Inquiries and Medical Examinations of Employees Under the Americans

With Disabilities Act (July 27, 2000) at General Principles � B &

n.3 (noting application of ADA standard to Rehabilitation Act claims).

Under this standard, disability-related inquiries or medical examinations

are permitted only where the employer has a reasonable belief that an

employee's present ability to perform essential job functions will be

impaired by a medical condition or that s/he will pose a direct threat due

to a medical condition. Id. at question 17. In the instant case, we find

that requiring complainant to submit to a fitness-for-duty evaluation was

appropriate given her past behavior and her demeanor during the meeting of

April 9, 1997. Further, we note that because the Last Chance Agreement

offered to complainant made the taking of medication a requirement

for continued employment, and such a requirement is impermissible

under Commission guidance, we concur with the AJ's conclusion that no

reasonable accommodation was available to reduce or eliminate the risk

of substantial harm. EEOC Enforcement Guidance on the Americans with

Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915-002,

at 32 (March 25, 1997). We, therefore, find no discrimination with

regard to complainant's allegations in the instant complaint.

After a careful review of the record, the Commission finds that there

are no material facts in dispute and summary judgment was appropriate in

this case. We further find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies, and

laws. We discern no basis to disturb the AJ's decision. Therefore, after

a careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

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 (S0900)

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 (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

December 20, 2001

__________________

Date