01985925
11-09-2000
Betty Ledesma, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Betty Ledesma, )
Complainant, )
) Appeal No. 01985925
v. ) Agency No. 4-E-852-1105-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her claim that the agency violated
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 et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq.<0> The appeal is accepted by the Commission in
accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the complainant has established that
the agency discriminated against her based on race (Mexican American),
color (brown), religion (Pentecostal), national origin (Hispanic), age
(43), mental disability (perceived stress), and reprisal (prior EEO
activity) when she was scheduled for a fitness-for-duty examination in
February 1995.
BACKGROUND
The complainant filed a formal complaint in January 1995 in which
she raised the issue identified above. Following an investigation,
the complainant requested a hearing before an administrative judge but
subsequently withdrew that request. The agency thereafter issued a
final decision (FAD) dated June 23, 1998, finding no discrimination.
It is from this decision that the complainant now appeals.
In examining the merits of the complainant's case, it is necessary to
address the chain of events that culminated in the agency's request that
she undergo the fitness-for-duty examination. The record reveals that
the complainant was hired by the agency as a letter carrier in 1985.
In 1991, the complainant was reassigned to a position in the agency's
Stamps By Mail (SBM) Unit in Phoenix, Arizona, after the Office of
Workers' Compensation Programs (OWCP) accepted her claim for work-related
stress. In April 1993, the complainant filed a second claim with OWCP
in which she characterized SBM as overly stressful due to harassment
and discrimination she had experienced.<0> By November of that year,
the complainant's condition had worsened to a point where she was not
following instructions and was insisting that her co-workers should all
be reassigned. As a result of this behavior, and because the complainant
refused to be reassigned, she was informed by the Injury Compensation
Office that she was being removed from SBM until a new position could
be found for her.
In January 1994, the complainant was examined by a psychiatrist
(Psychiatrist A) to determine her fitness for duty. Psychiatrist A
concluded that the complainant had a �psychiatric illness� and attributed
her problems in SBM to her inability to work with other individuals.
In this regard, he concluded, �Because of the reported continued
disruption she creates in the work place it would be appropriate to demand
some accommodation from her or allow her to seek employment elsewhere.�
The complainant was thereafter examined by another psychiatrist
(Psychiatrist B) in February 1994 and found to be �manifesting histrionic
and passive-aggressive dependent personality traits.� Psychiatrist B
noted that �[h]er need to act, be in the limelight, and make efforts to
receive social approval is profound.� He stated further:
Combining her superficiality, her acting, and the �holier than thou'
ongoing attitude, I can see where it would be very difficult for others
to have ongoing day-to-day contact with her and to have these put-downs
about what a good person is, what a good worker she is, and how much
better she is than they are, being stated and restated to others in one
form or another ... If some position could be found at the Post Office
where she has little or almost no contact with other people, it would
be in the interest of her peers.
Psychiatrist A thereafter reviewed Psychiatrist B's findings and
concluded, �[T]here appears to be no option but to let the complainant
seek employment elsewhere. If she is brought back to work, another job
would have to be created for her where she has no contact with other
employees ... It appears eminently clear that the complainant is unable
and unwilling to work with others.�
In mid-1994, the complainant submitted a request for light duty and was
informed, by letter dated October 26, 1994, that no work could be found
that was consistent with her medical restrictions. The complainant
was thereafter issued a letter dated December 12, 1994, notifying
her that she had been scheduled for a fitness-for duty examination
(FFDE) to determine her ability to work as a clerk. Although the
complainant initially objected, she was subsequently examined by a third
psychiatrist (Psychiatrist C) in February 1995. Psychiatrist C diagnosed
the complainant with probable dysthymic disorder and mixed character
disorder, and his characterization of her symptoms was consistent with
those of Psychiatrists A and B.
On appeal, the complainant does not focus on the FFDE, but, rather,
alleges in general terms that the agency's actions over the last
several years have been discriminatory. She also states that she has
been reinstated into her letter carrier position and argues that this
action is discriminatory.<0>
ANALYSIS AND FINDINGS
Disability
To establish a prima facie case of disability discrimination, the
complainant must demonstrate that: 1) she is an �individual with
a disability� as defined in 29 C.F.R. � 1630.2(g);<0> 2) she
is a �qualified individual with a disability� as defined in
29 C.F.R. � 1630.2(m); (3) she was required to undergo the FFDE. Id.
The complainant must also demonstrate a causal relationship between her
disabling condition and the FFDE. An �individual with a disability�
is defined as someone who: (1) has a physical or mental impairment
which substantially limits one or more of such person's major
life activities; (2) has a record of such an impairment; or (3) is
regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).
�Major life activities� include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). Although the complainant
argues that she is merely regarded as disabled, the Commission finds
sufficient evidence to conclude that she has an actual disability.<0>
Specifically, it is apparent from the reports of Psychiatrists A, B,
and C that the complainant has a personality disorder that, as evidenced
by her problems in SBM, substantially limits the major life activity
of interacting with other individuals. See Enforcement Guidance: The
Americans With Disabilities Act and Psychiatric Disabilities, EEOC
Notice No. 915.002 (March 25, 1997), at 5. Accordingly, the Commission
finds that the complainant is an �individual with a disability.�
To the extent the complainant appears unable to perform any position in
which she has to work with other individuals, it is not apparent that she
is a �qualified individual with a disability.� Even assuming, arguendo,
that the complainant could make such a showing, we find she has not
met her ultimate burden of establishing discrimination. Specifically,
the evidence of record does not support a finding that the FFDE was
scheduled because the complainant is disabled. Instead, the evidence
supports a finding that it was scheduled to determine whether there was
a position into which she could be assigned in light of the limitations
found by Psychologists A and B.
Furthermore, the Commission finds that requesting the FFDE did not violate
the Rehabilitation Act. As of early 1994, medical reports indicated that
the complainant was unable to work in any position in which she would have
to interact with other employees. In this regard, the purpose of the FFDE
was to determine whether the complainant's condition had improved to a
point where she could be placed into a clerk's position. For this reason,
we find that the FFDE was in accordance with the Rehabilitation Act's
requirement that medical examinations of employees be �job-related and
consistent with business necessity.� 29 C.F.R. � 1630.14. Accordingly,
the Commission finds the complainant has not established that the agency
discriminated against her based on disability.
Race, Color, Sex, Religion, National Origin, Age, & Reprisal
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
is a three-step process. The complainant has the initial burden of
establishing a prima facie case. If the complainant meets this burden,
then the burden shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. The complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
articulated by the agency was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This analysis is equally applicable to claims brought under the ADEA. Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Even assuming that the complainant is able to establish a prima facie
case under the alleged bases, we find that the agency has articulated a
legitimate, nondiscriminatory reason for requesting the FFDE, i.e., to
determine whether the complainant could be placed into a clerk position.
The Commission finds that the complainant has offered no evidence
which demonstrates that this reason is pretextual. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, we find the
complainant has not established that the agency discriminated against
her based on race, color, sex, national origin, religion, age, or in
retaliation for her prior EEO activity.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
11-09-00
Date Frances M. Hart
Executive
Officer
Executive
Secretariat
01 On November
9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect.
These regulations apply to all federal sector EEO
complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614,
where applicable, in deciding the present appeal.
The regulations, as amended, may also be found at
the Commission's website at www.eeoc.gov.
02 OWCP subsequently denied that claim. Additionally, the complainant
filed a civil action in Federal district court in which she alleged
that actions taken against her in SBM were discriminatory. That action
resulted in a finding of no discrimination.
03 The allegations raised by complainant in her appeal were not raised
with or investigated by the agency. Complainant is advised that if she
wishes to pursue, through the EEO process, the new allegations raised on
appeal, she shall initiate contact with an EEO counselor within 15 days
after she receives this decision. The Commission advises the agency
that if complainant seeks EEO counseling regarding these allegations
within the above 15 day period, the date complainant filed the appeal
statement shall be deemed to be the date of initial EEO contact, unless
she previously contacted a counselor regarding this matter, in which
case the earlier date should serve as the EEO counselor contact date.
Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998).
04 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
05 In reaching this determination, we have also considered the
complainant's claim in light of the Supreme Court's recent decisions
in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy
v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertsons,
Inc. v. Kirkingburg, 527 U.S.555 (1999); Cleveland v. Policy Management
Systems Corp., 526 U.S. 795 (1999); and Bragdon v. Abbott, 524 U.S. 624
(1998).