0120063628
04-25-2007
Thea Cook, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Thea Cook,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01200636281
Hearing No. 170-A5-0386X
Agency No. 1A-072-0035-04
DECISION
On May 28, 2006, complainant filed an appeal from the agency's April
27, 2006, final order concerning her equal employment opportunity (EEO)
complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted for the Commission's de novo review,
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing clerk, PS-5, at the agency's Processing & Distribution
Center facility in Kearny, New Jersey. On September 24, 2004, complainant
filed an EEO complaint alleging that she was discriminated against on the
bases of sex (female), disability2, and reprisal for prior protected EEO
activity (arising under an EEO statute that was unspecified in the record)
when, she received a Notice of Emergency Placement, dated June 20, 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On December 20, 2005, the agency filed a Motion
for a Decision without a Hearing. Complainant filed her response on
January 28, 2006, and the agency replied to complainant's Response on
February 6, 2006. The AJ assigned to the case granted the agency's
motion, and issued a decision without a hearing on April 24, 2006.
In her decision, the AJ noted that complainant did not raise the bases
of sex or reprisal in her formal complaint, however, she did so in her
Response, and therefore those bases were added. The AJ additionally noted
that, in her Response, complainant raised new allegations of hostile work
environment, sex-based harassment and denial of reasonable accommodation,
that were neither raised in EEO counseling, her formal complaint, or
in her request to amend the complaint. Since the new claims were not
timely raised (as the matters occurred prior to the time frame in the
complaint), the AJ did not address them.3
The AJ then found the following: Complainant had injured her back and
was placed on a twenty pound lifting restriction in December 2003.
Management determined that she could continue to perform her regular
duties, with accommodation, in the DBCS Section. Over several months,
management received complaints from a number of complainant's co-workers,
claiming that complainant harassed them and that they felt threatened
by her. The co-workers also asserted that complainant was complaining
that the co-workers were trying to make her look bad, that she did not
like the way they were looking at her, and that they were spying on her
for management. The Supervisor, Distribution Operations (SDO), issued
complainant a Notice of Emergency Placement for erratic behavior on June
20, 2004, with the concurrence of the Manager, Distribution Operations
(MDO). Complainant was subsequently sent for a psychiatric Fitness
for Duty, which determined that she was a high risk. Subsequently,
complainant was cleared to return to duty, which she did on November 5,
2004.
The AJ first found that complainant had no prior EEO activity,
and therefore, could not establish a prima facie case of reprisal
discrimination. Additionally, the AJ found that complainant cited
no male comparators, and no other evidence of a causal nexus between
her sex and her emergency placement was presented. Therefore, the
AJ found that complainant could not establish a prima facie case of
sex discrimination. As to disability, the AJ found that complainant
was not disabled within the meaning of the Rehabilitation Act. The AJ
then noted that assuming, arguendo, that a prima facie case had been
established, the agency has articulated a legitimate, nondiscriminatory
reason for complainant's Emergency Placement, namely, her paranoia,
her conduct toward her coworkers, and her inability to work with other
employees without causing problems. The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
On appeal, complainant contends that she subjected to discrimination as
to the emergency placement. She also contends that the fitness-for-duty
examination was in violation of the Rehabilitation Act. Initially,
we note that we discern no error on the part of the AJ for failing to
address this claim, as it was not an accepted issue in this complaint.4
Nevertheless, we address the claim now. An employer may request medical
documentation from an employee or require a medical examination of an
employee only if the request or examination is job-related and consistent
with business necessity. See Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans
with Disabilities Act (July 27, 2000) (web version) (Guidance), at 5.
This requirement is met when the employer has a reasonable belief,
based on objective evidence, that (1) an employee's ability to perform
the essential job functions is impaired by a medical condition; or (2)
that an employee poses a direct threat due to a medical condition.
See Guidance at 14. Objective evidence is reliable information,
either directly observed or provided by a credible third party, that
an employee may have or has a medical condition that will interfere
with his/her ability to perform essential job functions or will result
in direct threat. Id. Where the employer forms such a belief, its
disability-related inquiries and medical examinations may be job-related
and consistent with business necessity. Id. Under the circumstances
of this case, several of complainant's co-workers had complained of very
strange behavior on the part of complainant, and we find that the medical
examination was "job-related and consistent with business necessity."
In this case, we find that it was proper for the AJ to issue a
decision without a hearing, as the record contains no genuine issues of
material fact in dispute.5 After a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the final order.
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
April 25, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record indicates that complainant had back problems, and could not
lift anything more than 20 lbs., and had difficulty stopping and bending.
3 We discern no abuse of discretion in the AJ's decision not to address
complainant's new claims. The record reveals that the agency's letter of
Acceptance of the Complaint defined the only issue as being complainant's
placement on Emergency Status, and notified complainant that if she
objected to the framing of the issue, that she had seven calendar days
to do so. There is no indication that complainant timely objected to
the framing of the issue.
4 The action of Emergency placement was the only accepted issue,
and not the subsequent action of requiring complainant to undergo a
fitness-for-duty examination.
5 For purposes of this decision, we have assumed arguendo that complainant
is disabled pursuant to the Rehabilitation Act. Further, we note that
although complainant contends in her Affidavit that she feels her SDO
used her co-workers' complaints as an excuse for putting her on Emergency
placement, and for not accommodating her, she does not contest that her
co-workers did in fact complain about her. Additionally, we note that
in her Affidavit, complainant concedes that she is not aware of any
other employee who was treated less harshly for similar infractions.
See Report of Investigation, Affidavit A, at 5.
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0120063628
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036