01A24036
08-28-2003
Barbara O. Whitley, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Barbara O. Whitley v. Department of the Army
01A24036
August 28, 2003
.
Barbara O. Whitley,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24036
Agency No. AGONFO9705H0170
Hearing No. 140-98-8264X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against her 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., when, on the bases of sex (female), religion (Southern Baptist),
disability (myofascial pain syndrome and fibromyalgia), and in reprisal
for prior EEO activity:
(1) complainant's privileges as a Social Worker at Womack Army Medical
Center were revoked as a result of the credentials hearing on October
7, 1997;
complainant was exiled from her position in Social Work Services, Womack
Army Medical Center to work at the library at Womack Army Medical Center
for fifteen (15) weeks after she filed an EEO complaint against her
supervisor; and, because of this action, complainant endured numerous
indignities, including the removal of her clinical privileges to perform
social work at Womack Army Medical Center, effective February 27, 1997;
complainant's supervisor prejudiced the Womack Army Medical Center
Credentials Committee when he presented information on her medical
status, which prompted a �fitness-for-duty� evaluation. Complainant
believes that this action resulted in the suspension of her credentials
to work and affected her right to work;
her supervisor used inflammatory �religious threats� to impugn her
character and reputation before the Credentials Committee and isolate
her to the library; and
on January 29, 1997, she received a notice of reprimand for creating
a disturbance in the workplace and for absence without approved leave
on December 13, 1996, for two hours.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the final agency order.
We find that agency has shown that the �fitness-for-duty� evaluation was
job-related and consistent with business necessity. We, therefore,
decline to find that the fitness-for-duty evaluation constituted
a violation of the Rehabilitation Act. See Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA) (July 27, 2000) (web
version) at 5. Further, we find that assuming arguendo complainant was
an individual with a disability, the Administrative Judge's ultimate
finding, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
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
August 28, 2003
__________________
Date