0120112749
10-25-2011
Brian M. Kane, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Brian M. Kane,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120112749
Hearing No. 520-2010-00271X
Agency No. 4A110013609
DECISION
On April 29, 2011, Complainant filed an appeal from the Agency’s April
7, 2011, final order concerning his equal employment opportunity (EEO)
complaint alleging 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 Commission accepts the appeal, pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUES PRESENTED
1. Whether the record was adequately developed for summary disposition?
2. Whether an EEOC Administrative Judge erred in issuing summary judgment
in favor of the Agency, finding no discrimination on the basis of mental
disability?
a. Whether Complainant, who developed a phobia of black females and a
fear of being subjected to future accusations by subordinate employees,
could perform the essential functions of a managerial or supervisory
position, with or without a reasonable accommodation?
b. Whether the Agency erred in placing Complainant on emergency off-duty
status, after he was arrested by two black female police officers for
fleeing and obstructing official duties?
BACKGROUND
Complainant worked as a Manager of Customer Services, EAS-20, at the
Agency’s Far Rockaway Post Office in Rockaway, New York. News reports
in 2007 and 2008 indicated that this postal facility had numerous
problems. For example, residents complained of poor operational service,
the police had arrested the facility’s public relations specialist for
grand larceny, a congressman had called for the postmaster to be replaced,
and managers, including Complainant, believed that employees were leveling
false accusations against them in retaliation for disciplining employees
for poor performance.
From 2003 to 2006, Complainant himself had been the subject of multiple
allegations of violence and harassment by female employees. Defending
against these charges was stressful to Complainant. On December 14,
2006, his psychiatrist opined that Complainant was unable to return to
work because he suffered from general anxiety disorder and post traumatic
stress disorder.
[Complainant] is . . . suffering from phobia of working with female
employees of the Postal service. He feels it is conspiracy of
certain female Postal employees to try to get him removed from the
Postal Service. . . . This phobia interferes with his ability to work,
socialize, and go about a daily routine. His symptoms of a phobia include
feelings of panic . . . reactions that are automatic and uncontrollable,
practically taking over his thoughts . . . and an overwhelming desire to
flee any situation that includes working with or supervising any female
postal employees . . . .
Complainant stopped working and began to receive workers’ compensation.
Complainant’s Capacity to Return to Work and Restrictions
Soon, the psychiatrists for Complainant and the Office of Workers’
Compensation Program (OWCP) disagreed over whether Complainant could
return to work and under what restrictions. Initially, Complainant’s
psychiatrist maintained in an October 15, 2007 work-capacity evaluation
that Complainant could work so long as “he is not associated, in
any way, with black females.” “[Complainant] cannot work in any
type of environment where female black employees of the postal service
are present. [Complainant] is experiencing extreme anger hostility and
prejudices towards black females at this time.”
OWCP wanted a second opinion, so it sent Complainant to a board-certified
psychiatrist. On December 11, 2007, the board-certified psychiatrist
determined that Complainant “is able to perform his usual daily
activities and he can return to work. However, [Complainant] cannot
work in contact with the females who falsely accused him in the past.”
Complainant’s psychotherapist disputed this assessment on January 21,
2008, writing that it would be detrimental for Complainant to return to
his previous duties because he was still suffering from hostility toward
black women. The psychotherapist believed that Complainant could work,
so long as he was not exposed to the possibility of additional false
accusations from subordinate employees or colleagues.
First Limited Duty Offer
On February 1, 2008, the Agency offered Complainant a modified, limited
duty assignment, in accordance with the board-certified psychiatrist’s
recommendations. Complainant would perform all the duties of a manager
of customer services, working an average of 8 hours per day, five days
per week. The only restriction would be no contact with the females who
had accused him in the past. Complainant’s Affidavit (Aff.), at 39-40.
Two days later, Complainant declined the offer, stating that the offer
went against his doctors’ findings and limitations. He indicated that
he was currently disputing the board-certified psychiatrist’s opinion
before OWCP. Complainant’s Aff. at 39, 41.
Another of Complainant’s psychiatrists opined in March and May 2008
that Complainant was unable to return to work as a supervisor because
he could only work in a stable, non-confrontational environment.
Because of the conflicting medical opinions, OWCP had a “referee”
psychiatrist resolve the differences. This referee psychiatrist
submitted a new work-capacity evaluation on May 23, 2008, indicating
that Complainant could work under three conditions. First, Complainant
should not have direct supervisory responsibility of personnel to avoid
the possibility of additional complaints filed against him. Second,
Complainant should be removed from his former work location to limit
exposure to his former coworkers. Third, he should not drive or operate
dangerous machinery while taking his medication.
Second Limited Duty Offer
On September 12, 2008, the Agency incorporated the referee
psychiatrist’s recommendations and offered Complainant a second
modified, limited duty assignment. He would work as a modified manager,
verifying data information for routes prior to inspection and annotating
information. Complainant would not have direct supervisory responsibility
of personnel. He would work at the Brooklyn mail facility to avoid
his former work location and limit exposure to former co-workers.
And he would not drive or operate dangerous machinery while taking his
current medication.
On October 30, 2008, OWCP advised Complainant that the second limited
duty offer was suitable for his medical limitations. Nevertheless,
Complainant declined the limited duty offer, citing his medical condition.
Termination of Workers’ Compensation Benefits
Because Complainant had refused to accept suitable work, OWCP terminated
his workers’ compensation benefits, effective April 12, 2009.1
The OWCP decision noted that Complainant had telephoned its customer
service department on March 2, 2009, declaring that he could not have
an African American Claims Examiner because he was charged by African
American females. The customer service representative advised him that
claimants are not assigned Claims Examiners based on their ethnicity.
Brooklyn Facility
With the loss his workers’ compensation benefits, Complainant belatedly
accepted the second limited duty offer on April 16, 2009. Four days
later, Complainant reported to work at the Agency’s Brooklyn facility.
There, Complainant worked four hours entering information into a computer,
and then refused the Agency’s instruction to walk alone on mail routes
in Long Island City. Complainant believed that such an assignment was
not part of the limited duty offer and exceeded his medical limitations.
Complainant informed OWCP about this incident.
Afterwards, the Agency informed Complainant that the Brooklyn facility
did not have any other available work for him within his limitations,
so Complainant did not work for a month.
Return to Far Rockaway Facility
Complainant’s psychiatrist wrote on May 12, 2009 that Complainant had
sufficiently recovered to return to work. He recommended that Complainant
should first be acclimated by working only four hours per day, five days
per week. He strongly suggested that Complainant work in the presence of
other supervisors as witnesses and not be subjected to solo interaction
with craft employees. The psychiatrist believed that Complainant could
perform his normal duties in all other respects.
Based on the psychiatrist’s May 12, 2009 letter, the Agency instructed
Complainant to report to the Far Rockaway facility in May 2009.2 At
Far Rockaway, Complainant did not supervise employees. Rather, he
performed administrative duties and worked with the Postmaster and
other supervisors. Aff. C, at 3-4.
Arrest and Consequences
On June 29, 2009, Complainant was on his way to work when he was arrested
by two black female police officers. According to Complainant,3 the
problems started when he used his horn two times in order to signal an
unmarked police car in front of him to drive faster. When the police
car did not speed up or pull over to let him pass, Complainant used his
horn two more times and went around the police vehicle on the right,
which was a bicycle lane.
The police car turned on its lights to pull him over. Complainant got
out of his vehicle to explain that he was a manager of the Far Rockaway
postal facility and asked why the police had driven so slowly and not
allowed him to pass. Complainant then noticed that the officers were
two black females. He maintained that the two black female officers
had engaged in profiling and unjustifiably pulled him over. He asked
to speak to their supervisor. After waiting for a while, he told the
police officers that he was going to the police station. According to
Complainant, he felt that he needed to get away from the two black females
and have a witness at the police station. The officers pursued him and
eventually arrested him for fleeing and obstructing official duties.
Complainant’s Aff., at 8-9.
On July 6, 2009, the New York Post published an article on Complainant’s
arrest, identifying Complainant by name. The comments section on the
internet identified him as a supervisor at Far Rockaway. Another local
newspaper published an article on the arrest on July 10, 2009, identifying
Complainant as a former employee of the Rockaway Beach Post Office.
Because of Complainant’s arrest, the Agency placed him in an emergency
off-duty status on July 9, 2009 for conduct unbecoming a postal employee.
The Agency proposed to demote him from an EAS-20 Manager to an EAS-17
Supervisor on October 5, 2009, and the demotion went into effect on
December 29, 2009.
EEO Complaint
Complainant initiated contact with an EEO counselor on July 21,
2009.4 According to the EEO counselor’s report, Complainant alleged
discrimination on the bases of mental disability and retaliation when:
1. from May 18, 2009 to the present, the Agency paid him for only four
hours of work per day, even though he is an EAS employee and entitled
to 8 hours of pay per day;
2. The Agency placed him in emergency off-duty status on July 9, 2009;
3. on August 21, 2009, the Agency did not pay him for that pay period
and he was charged with 80 hours of leave without pay;
4. on October 5, 2009, the Agency proposed to demote him;
5. on October 13, 2009, his manager failed to submit a workers’
compensation CA-2 form.
On October 19, 2009, Complainant filed a formal EEO complaint,
alleging that the Agency subjected him to a hostile work environment
and discriminated against him on the basis of mental disability (general
anxiety disorder and post traumatic stress disorder) when:
1. the Agency placed him back in a hostile work environment, against
the recommendations of psychiatrists;
2. the Agency was trying to demote him for an action that was caused by
a job related injury and by being assigned to a known hostile environment;
3. the Agency violated ELM 519.71 and the F-401 concerning back pay.
On November 30, 2009, Complainant requested to amend his complaint so
that his allegation read as follows. The Agency discriminated against
Complainant based on mental disability when: on May 18, 2009, management
placed the complainant back in a hostile work environment against the
orders of his doctors and OWCP’s doctors. Subsequently on July 9,
2009, the Agency placed him in emergency off-duty status, and then the
Agency proposed to demote him on October 5, 2009.
On January 29, 2010, the Agency revised the issues accepted for
investigation. The Agency agreed to investigate Complainant’s
allegation of discrimination based on mental disability (general anxiety
disorder and post traumatic stress disorder) when:
1. on July 9, 2009, management placed Complainant on emergency placement,
after he had been placed back into a hostile work environment against
his doctors’ orders in May 2009.
The Agency bifurcated the demotion allegation into a mixed-case complaint
(Agency No. 4B-110-0001-09).5 The Agency also declined to process the
other issues raised by the EEO counselor because Complainant did not
include those issues in his formal complaint.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing.
On April 20, 2010, Complainant filed a motion to amend his complaint
to include his demotion to an EAS-17 Supervisor, and the Agency’s
violation of ELM 519.72 and 519.732 regarding his salary.
AJ Summary Judgment Decision
Over Complainant's objections, the AJ assigned to the case granted
the Agency’s August 3, 2010 motion for summary judgment and issued
a decision on March 31, 2011. Under a disparate treatment framework,
the AJ found that the Agency did not exceed Complainant’s most recent
medical restrictions when it placed him in the Far Rockaway facility.
The AJ reasoned that the most recent documentation from his psychiatrist
on May 12, 2009 did not specify any location-based restrictions.
In addition, Complainant did not object to the reassignment or ask for
another reasonable accommodation. Therefore, the AJ determined that
the Agency did not violate his medical restrictions when it reassigned
him to the Far Rockaway facility.
The AJ also found that the Agency had placed Complainant on emergency
leave because of his June 29, 2009 arrest, not because of his disability.
Complainant could not establish that his arrest directly resulted from
the Agency placing him back at the Far Rockaway facility. In addition,
the AJ noted that an agency need not exempt an employee from discipline
for misconduct that stems from or is exacerbated by that employee’s
disability if such conduct would otherwise be subject to discipline.
As for his hostile work environment claim, the AJ found that Complainant
did not establish that the Agency had engaged in unwelcomed conduct.
Complainant did not notify the Agency that he believed his reassignment
to Far Rockaway constituted hostile work environment harassment, nor
did he object to the reassignment. In addition, the AJ found that
the comments allegedly made by the Postmaster during a service talk
occurred before Complainant began working at the facility, and the
comments only reiterated Complainant’s actual employment situation,
that he would not be supervising employees. The AJ found such comments
to not be sufficiently severe or pervasive to constitute hostile work
environment harassment.
Even if Complainant could establish that he was subjected to unwelcome
conduct, the AJ found that Complainant could not show that the conduct
was based on his disability, that the Agency failed to remedy the hostile
work environment, or that the reassignment caused his misconduct with
the police officers. Ultimately, the AJ found that the Agency did not
discriminate against Complainant on the basis of mental disability.
The Agency subsequently issued a final order, adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the record was inadequately
developed for summary disposition. Complainant contends that the AJ
never ruled on his May 30, 2010 motion to compel discovery, in which he
requested all threat assessments made in the Far Rockaway Post Office
from January 2000 to January 2010. The purpose of this request was to
show that Complainant and other managers at the Far Rockaway facility
faced numerous threats from employees over the years, making this a
“hostile” work environment for management.
Complainant also maintains that summary judgment was inappropriate
because there were genuine issues of material fact in dispute. First,
Complainant disputes the Agency’s contention that there was no available
work for him at the Brooklyn facility and it had no other choice but to
assign him available administrative work at Far Rockaway. Complainant
contends that there was available work for him to do (inputting routes
into a postal computer, working on adjusting routes for carriers)
at the Brooklyn facility or any other facility besides Far Rockaway.
Second, Complainant maintains that the AJ incorrectly considered his
psychiatrist’s May 12, 2009 letter in isolation, and failed to consider
past recommendations that he not work at Far Rockaway. Third, the AJ
erred in determining that the second limited duty offer was within his
medical restrictions because the Department of Labor’s Employees’
Compensation Appeals Board eventually reversed the OWCP’s decision to
terminate his workers’ compensation benefits.
Complainant also argues that, as a matter of law, the AJ erred in not
considering his mental impairment as a mitigating factor for his actions
that led to his arrest.
ANALYSIS AND FINDINGS
To the extent that Complainant argues that the AJ abused her discretion
in failing to amend his complaint to include additional claims, such as
his demotion to an EAS-17 Supervisor, and the Agency’s violation of
various sections of the ELM regarding his pay or salary, we find there was
no abuse of discretion. The record indicates that the Agency processed
his demotion claim as a mixed-case complaint, issued a mixed-case final
decision, and gave Complainant appeal rights to the MSPB. .
Standard of Review
In rendering this appellate decision, we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision
on an appeal from an Agency’s final action shall be based on a de
novo review . . .”); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
be reviewed de novo”). This essentially means that we should look at
this case with fresh eyes. In other words, we are free to accept (if
accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, § VI.A. (explaining that the de novo standard
of review “requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment
of the record and its interpretation of the law”).
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
Adequacy of the Record
Upon review, the Commission finds that the record was adequately developed
for summary disposition. EEOC regulation 29 C.F.R. § 1614.108(b)
requires an agency to develop an appropriate factual record, one that
allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred.
We find that the AJ did not abuse her discretion in failing to compel
the Agency to produce ten years’ worth of threat assessments for
the Far Rockaway facility. In the employment discrimination context,
the unwelcome conduct must be based on a protected basis, such as a
complainant’s race, sex, age, religion, or disability. The documents
that Complainant sought could only establish that he and other managers
were subjected to unwelcome conduct based on their managerial status
(or rather their employees’ negative attitudes towards management),
rather than a basis covered by the employment discrimination laws enforced
by the EEOC. Those past threat assessments would not help Complainant
show that the present alleged harassing behavior was because of his
mental disability.
The record contains numerous and relevant medical documentation from
Complainant’s doctors and psychiatrists, as well as work-capacity
evaluations and Complainant’s own affidavit testimony to explain his
impairment, thoughts, and actions. The record includes copies of the
two limited duty job offers by the Agency, as well as Complainant’s
reasons for rejecting those job offers. As such, we find that the record
is adequately developed for a reasonable fact finder to draw conclusions
as to whether disability discrimination occurred.
Summary Judgment Decision
For the reasons stated below, we find that the AJ properly issued summary
judgment in favor of the Agency because there were no genuine issues of
material fact in dispute, and that Complainant failed to establish that
he was denied a reasonable accommodation or subjected to hostile work
environment harassment on the basis of his mental disability.
a. Qualified Individual with a Disability and Reasonable
Accommodation
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodations for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. §§
1630.2(o), (p).
The first thing Complainant must do is establish that he is an individual
with a disability, under the Rehabilitation Act. An individual with
a disability is one who (1) has a physical or mental impairment that
substantially limits a major life activity, (2) has a record of such an
impairment, or (3) is regarded as having such an impairment. 29 C.F.R. §
1630.2(g).
Complainant must then show that he is a “qualified” individual with a
disability, an “individual with a disability who satisfies the requisite
skill, experience, education, and other job-related requirements of the
employment position such individual holds or desires, and who, with or
without reasonable accommodation, can perform the essential functions
of such position.” 29 C.F.R. § 1630.2(m).
For the sake of argument, the Commission we will assume, for summary
judgment purposes only, that Complainant is an individual with a
disability, who has mental impairments that substantially limit him in
performing a major life activity. Upon review, however, the Commission
finds that Complainant is not a “qualified” individual with a
disability, who can perform the essential functions of a manager or
supervisor of customer services.
The record includes the position description of an EAS-20 manager of
customer services. The position calls for a manager to manage the
activities of a large station or branch with a large to very large
number of employees. Complainant averred in his affidavit that one of
the essential functions of his position as an EAS-20 Manager of Customer
Services was to “[s]upervise and manage approximately 23 employees.”
Complainant’s Aff. at 4. Therefore, it is reasonable to infer that
one of the essential functions of being a manager or supervisor is to
manage or supervise employees.
Complainant’s medical documents, however, have consistently revealed
a need, independent of work location, to work in a non-confrontational
environment that immunizes him from the possibility of further
accusations and allegations by subordinates. This need has manifested
itself in various ways. First, and most relevant to this case, is his
psychiatrist’s May 12, 2009 recommendation that Complainant cannot
work with subordinate employees by himself, but must always have another
supervisor present to act as a possible witness, lest he be accused
of doing something by an employee. The second manifestation of this
need occurred during his arrest, when he suddenly felt the need for
a supervisor to witness the two black female police officers pulling
him over.
Moreover, Complainant averred in his February 4, 2010 affidavit that his
post traumatic stress disorder causes him to experience an overwhelming
desire to flee any situation that includes working with, supervising,
and socializing with black females. Complainant’s Aff. at 3. We find
this has manifested itself in his fleeing from two black female police
officers, as well as his call to the OWCP customer services number,
demanding that he not have a black Claims Examiner.
We find that the symptoms of Complainant’s disorders, the phobia of
black females and the persistent suspicion of all subordinate employees
as possible instigators of false accusations, have rendered Complainant
unable to perform the essential function of managing or supervising
employees. His request to be placed in a work environment that immunizes
him from all future employee allegations, EEO-related or otherwise,
is an accommodation that no employer can provide.6
An employer can reasonably accommodate an employee with a
disability-related occupational injury by restructuring a position
through the reallocation or redistribution of marginal functions that
the employee cannot perform because of the disability, but an employer
cannot eliminate the essential functions of a position. EEOC Enforcement
Guidance: Workers’ Compensation and the ADA, EEOC Notice No. 915.002,
at Question 20.
Here, the Agency cannot accommodate Complainant’s needs, suspicions,
and phobias by restructuring a managerial or supervisory position by
reallocating to him marginal administrative tasks while eliminating the
essential function of managing and supervising employees. Therefore,
we find that Complainant is not a “qualified” individual with
a disability because he cannot perform the essential functions of
a managerial or supervisory position, with or without a reasonable
accommodation.7
If he is not qualified to work in a supervisory position, then we must
analyze whether he can be reassigned to a lower-graded position for
which he is qualified, absent undue hardship, but it is not apparent
that there is a lower-graded position for which he could perform
the essential duties, given his work restrictions and the increased
likelihood of interacting with formerly subordinate employees. Nor does
having Complainant work alone seem to be a viable option, since he
had previously declined to walk on carrier routes by himself in Long
Island City, stating that this task violated his medical restriction
of working alone. As such, we determine that Complainant is not a
“qualified” individual with a disability because he can no longer
perform the essential functions of a supervisory position or lower-graded
position, with or without a reasonable accommodation.
Therefore, we find that Complainant failed to show that he was denied
a reasonable accommodation when the Agency reassigned him to the Far
Rockaway facility because he is not a “qualified” individual with
a disability entitled to a reasonable accommodation.
b. Hostile Work Environment
To establish a hostile work environment claim, Complainant must show five
things. First, Complainant must be a member of a statutorily protected
class. Second, the Agency engaged in unwelcome verbal or physical
conduct. Third, the unwelcome conduct was based on Complainant’s
statutorily protected class. Fourth, the unwelcome conduct either (a)
affected a term or condition of employment, or (b) had the purpose or
effect of unreasonably interfering with the work environment or creating
an intimidating, hostile, or offensive work environment. Fifth, there is
a basis for imputing liability to the employer. Humphrey v. U.S. Postal
Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11.
Here, the alleged unwelcome conduct consists of (1) the Agency reassigning
Complainant from the Brooklyn facility to Far Rockaway, (2) the Postmaster
commenting about Complainant’s supervisory status during a service talk
prior to Complainant’s return to Far Rockaway, and (3) the Agency’s
decision to place him on emergency off-duty status after his arrest.
The Commission finds that Complainant failed to establish the first
element of a hostile work environment claim, because he is not a
“qualified” individual with a disability, as explained above.
Therefore, Complainant failed to demonstrate that he was subjected to
a hostile work environment on the basis of disability.
Moreover, we find that the Postmaster did not violate the confidentiality
requirements of the Rehabilitation Act when he made comments at a service
talk. The confidentiality requirements apply to medical information
regarding Complainant’s occupation injury or workers’ compensation
claim. EEOC Enforcement Guidance: Workers’ Compensation and the ADA,
EEOC Notice No. 915.002, at Question 10. The Postmaster’s comments,
as alleged by Complainant’s affidavit, discussed only Complainant’s
lack of supervisory authority upon his return. Complainant does not
appear to suggest that the Postmaster revealed the nature of his mental
impairment, or discussed his workers’ compensation claim.
Finally, we address Complainant’s contention that the Agency’s
decision to place him in off-duty status was discriminatory and should
have been mitigated by his mental impairment. The Commission has long
held that an employer may discipline an individual with a disability for
violating a workplace conduct standard if the misconduct resulted from a
disability, provided that the workplace conduct standard is job-related
for the position in question and is consistent with business necessity.
An employer may discipline an employee with a disability for engaging in
misconduct if it would impose the same discipline on an employee without a
disability. EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, EEOC No. 915.002, at 29 (Mar. 25, 1997).
An employer, however, must make reasonable accommodation to enable an
otherwise qualified individual with a disability to meet such a conduct
standard in the future, barring undue hardship. Because reasonable
accommodation is always prospective, however, an employer is not required
to excuse past misconduct. Id. at 30-31.
We find that the Agency was not required to rescind or mitigate the
emergency placement in off-duty status because Complainant violated a
conduct standard that was job-related for the position in question and
consistent with business necessity. Complainant held the position of
manager of customer services at the time, which presumably meant that he
still maintained some contact with customers and other employees. When he
was pulled over by the police, he identified himself as a manager of the
Far Rockaway postal facility. This identifying information was later
conveyed through two local newspapers, thereby affecting the facility’s
reputation and relationship with customers. We also find that the Agency
was not required to offer reasonable accommodation for the future because
Complainant was no longer a qualified individual with a disability.
The Agency uniformly applied a conduct standard that was job-related
for the position in question and consistent with business necessity.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM the
Agency’s final order, implementing the AJ’s summary judgment decision,
finding no discrimination as alleged.
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
__10/25/11________________
Date
1 Complainant eventually appealed the termination of benefits to
the Department of Labor’s Employees’ Compensation Appeals Board.
On November 24, 2010, the Board reversed OWCP’s decision to terminate
benefits. The Board found conflicting medical evidence between the
referee psychiatrist’s opinion (Complainant could work full time
within restrictions), and Complainant’s psychiatrist’s opinion
(Complainant could not work full-time). Because of this conflict,
the Board determined that OWCP did not meet its burden of proof in
terminating Complainant’s benefits.
2 Complainant averred that before he returned to Far Rockaway, the
Postmaster held a service talk in which a letter carrier thought that
an EEO agreement prevented Complainant from working at Far Rockaway.
According to Complainant, the Postmaster allegedly stated that the letter
carrier should not worry because Complainant would not be supervising
the carriers. Complainant feels there was no need for the Postmaster
to make such a statement.
3 The police officers’ incident report disputes some of Complainant’s
account. For summary judgment purposes, we will consider as true
Complainant’s version of events, as described in his affidavit.
4 On July 18, 2009, Complainant filed a mixed case appeal to the
Merit Systems Protection Board (MSPB), challenging his July 9, 2009
emergency placement in an off-duty status. Complainant then requested
to withdraw the appeal, and an MSPB Administrative Judge issued an
initial decision, dismissing the appeal. Kane v. U.S. Postal Serv.,
MSPB No. NY-0752-09-0303-I-1 (Oct. 27, 2009).
5 On May 18, 2010, the Agency issued a mixed-case final agency decision on
the bifurcated demotion complaint. The decision found that Complainant
was not able to perform the essential functions of a manager, and
was therefore not a qualified individual with a disability under the
Rehabilitation Act. Furthermore, the decision found that the Agency
had provided him with a reasonable accommodation to work at the Brooklyn
facility in a limited duty assignment. Finally, the decision found that
Complainant could not demonstrate that management’s articulated reason
for demoting Complainant, his arrest by police officers, was pretextual.
The record does not show whether Complainant appealed this decision.
6 In the federal sector EEO administrative process, management
officials are not the named defendants in discrimination complaints
filed against federal agencies. Rather, the heads of the agencies are
the named defendants of complaints. Walker v. Dep’t of the Army, EEOC
Appeal No. 01933258 (Sept. 21, 1993). In other words, federal sector
supervisors are generally not personally liable for their discriminatory
actions under federal discrimination laws, including Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, and the
Age Discrimination in Employment Act. Therefore, we do not condone any
attempts by Complainant or the Agency to hinder or limit the rights of
other employees to file EEO complaints against the Agency, which happen
to involve Complainant’s allegedly discriminatory actions.
For example, Complainant would not have an actionable claim of
discriminatory harassment based on his disability if the Agency were to
investigate future complaints of harassment filed by female employees
concerning Complainant’s conduct. Federal agencies are legally
obligated to investigate complaints of harassment. Because of this legal
obligation, a claim that arises from an agency’s investigation of a
complaint of harassment fails to state a claim. See Rogers v. Dep’t
of Defense, EEOC Request NO. 05940157 (Feb. 24, 1995).
7 This finding is consistent with the Agency’s bifurcated mixed-case
final decision (Agency No. 4B-110-0001-09), in which the Agency determined
that Complainant was not able to perform the essential functions of a
manager of customer services, and was therefore not a qualified individual
with a disability, under the Rehabilitation Act.
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0120112749
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112749