Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 1, 2015

01-2013-0644-0500 (E.E.O.C. Sep. 1, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120130644

Hearing No. 570-2011-00306X

Agency No. 2010-23313-FAA-02

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s October 16, 2012 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. For the
following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic
Control Specialist (ATCS) at the Agency’s Washington Air Route Traffic Control Center in
Leesburg, Virginia. Agency rules and regulations state that ATCSs must have no neurosis,
personality disorder, or mental disorder that the Federal Air Surgeon determines clearly
indicate a potential hazard to safety and air traffic system. ATCSs are required to possess a
current medical clearance and undergo yearly medical examinations by the Flight Surgeon.

In 2006, the Complainant was off work for over six weeks due to Post Traumatic Stress
Disorder (PTSD) due to an operational error when she lost track of an aircraft. In February
2008, Complainant's husband asked for a divorce, and Complainant subsequently sought
treatment from a clinical psychologist (Doctor 1) as a result. Complainant was prescribed an
antidepressant medication which disqualified her for a safety-related position. Complainant
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was provided with administrative work within her medical limitations at her same grade and
pay. On September 29, 2008, Complainant’s medication changed, but she was still
disqualified from the ATCS position, and she remained performing administrative work.

On December 16, 2008, Complainant’s manager (M1) wrote to Complainant and stated that
she had been provided with work on the expectation that she would sufficiently recover to
return to her ATCS duties. Further, M1 informed Complainant that she had options if she was
incapable of meeting the requirements of the position. On December 21, 2008, Complainant
replied that she was no longer taking the medication, but it would be 90 days before she could
return to duty.

On December 24, 2008, Complainant visited her family in Ohio with her children.
Complainant had an emotional visit and spent hours crying. When Complainant returned
home, she went to the emergency room, and Inova Loudoun Adult Medical Psychiatric Service
was contacted. Complainant spent three days in the hospital, and followed up with Doctor 1
after she was discharged. Complainant had stopped taking her antidepressant medication prior
to the incident, and the inpatient admitting physician concluded that her lack of control became
severe as a result.

The Hospital Discharge Summary indicated a differential diagnosis of Bipolar Type II
Affective Disorder versus possible Intermittent Explosive Disorder. Complainant's discharge
diagnosis was Bipolar Type II Affective Disorder, but added that she was referred for
projective psychological testing to help clarify her diagnosis. Complainant was prescribed
Lamictal to manage her symptoms, but Complainant claimed that she never took the
medication.

On January 21, 2009, Complainant went for a psychological evaluation performed by a second
doctor (Doctor 2) at Doctor 1’s clinic. Doctor 2 conducted six different tests, and summarized
that Complainant presented with depressed mood and mood swings, periods of being easily
overwhelmed, poor focus and concentration, was easily distracted and forgetful, and had a
recent history of anhedonia, sleep problems, decreased energy and motivation, and challenges
with self-esteem and self-confidence. Doctor 2 further stated that she was likely to display
exaggerated and short-lived emotions, presented as flighty, exhibited poor impulse control, and
lacked insight into her behavior. Doctor 2 diagnosed Complainant with Major Depressive
Disorder, Single, Moderate, and Histrionic Personality Disorder.

Complainant attempted to regain her medical certification in Spring 2009, but the Flight
Surgeon would not approve due to the diagnosis of Bipolar Disorder. Complainant continued
to work administrative duties at the same pay level. On April 22, 2009, Doctor 1 sent a letter
indicating that Complainant's treatment has created significant improvement, moving gradually
from Major Depression to Depression Not Otherwise Specified to no depressive disorder or
other clinical syndrome at all. Further, Doctor 1 stated that Complainant continued to avail
herself of psychotherapy, but has been doing well without medication. Doctor 1 opined that
Complainant was fully capable of returning to work in her ATCS position.
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On June 4, 2009, the Regional Flight Surgeon, sent Complainant a letter stating that she has a
permanent disqualifying medical condition based upon her history of Bipolar Type II Affective
Disorder, Depressive Disorder and Histrionic Personality Disorder. Complainant appealed this
decision. On August 27, 2009, the Agency’s Chief Psychiatrist reported that the sustained
diagnoses of bipolar disorder, depressive disorders of various types, PTSD, and a histrionic
personality disorder, along with the severity of symptoms requiring hospitalization and
including mood swings, led him to conclude that a diagnosis of bipolar disorder is more likely
than not, which, along with a diagnosis of histrionic personality disorder, sustains a permanent
medical disqualification. As a result of the agreement from her peers, the Regional Flight
Surgeon determined that permanent medical disqualification was the proper decision.

On October 25, 2009, the Agency's Medical Officer issued a report based on meeting with
Complainant and reviewing her medical documentation. The Medical Officer concluded that
Complainant did not meet the medical standards for the performance of ATCS duties, and that
disqualification was appropriate.

Complainant filed an appeal and, on March 2, 2010, the Federal Air Surgeon sustained her
permanent medical disqualification. The Agency referred Complainant’s case to an
independent physician (Doctor 3). Doctor 3 reviewed Complainant’s medical documentation
and issued a 14-page report which concluded that Complainant suffered from Bipolar Disorder,
and posed a foreseeable risk to the safe functioning of an ATCS. On August 10, 2010, the
Federal Air Surgeon issued a second memorandum indicating that he had again reviewed all of
Complainant’s medical information, and again sustained her medical disqualification.

On July 22, 2010, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of sex (female) and disability when the Federal Flight Surgeon notified
her in March 2010 that the Agency had determined she was permanently medically disqualified
as an Air Traffic Control Specialist. At the conclusion of the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice of her right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Complainant timely requested a hearing, and the AJ held a hearing on April 4, 2012,
and issued a decision on October 1, 2012.

In her decision, the AJ initially determined that the record evidence showed that Complainant
was not a qualified individual with a disability. The AJ found that Complainant’s diagnosis
and medical certification determination was subjected to multiple levels of scrutiny both within
and without the Agency. Complainant's numerous appeals resulted in reviews from many
doctors in the Agency, up to the Flight Surgeon, as well as an outside independent review.
While Complainant disputes the diagnoses and the disqualification, and argues that the more
recent statements from her private doctors state that she no longer suffers from Depressive
Disorder or other psychiatric conditions, the record is clear that many more doctors have
concluded that she does suffer from disqualifying conditions. As a result, the AJ found that
Complainant failed to show that she is qualified for the ATCS position.
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With regard to her sex discrimination claim, Complainant’s only comparables were individuals
whom she alleges were medically disqualified and provided with permanent positions, whereas
she has been given assignments but no permanent non-ATCS position. Complainant’s co-
worker testified that he worked on various assignments until he bid on and was selected for a
permanent non-ATCS position. The Agency presented evidence of other individuals who did
likewise. The AJ concluded that there was no evidence of a similarly situated person who was
given a permanent non-ATCS position without applying for that position. Moreover,
Complainant presented no evidence that she applied for permanent positions.

Complainant argued that the doctors indicated “probable” Bipolar Disorder, and that the
disqualification is unfounded. The AJ noted that all of the medical reports base their
determinations on Complainant’s behavior throughout the years, in addition to several probable
diagnoses, including Bipolar Disorder, Major Depression, and Histrionic Personality Disorder.
Complainant argued that she was able to successfully perform her position in prior years even
with psychiatric issues such as PTSD; however, it was clear that since February 2008
extending into 2009, that she was unable to perform the duties of her position, and professional
medical assessments indicated that she continued to be unable to safely perform the duties of
the position.

Consequently, the AJ concluded that Complainant failed to show that the Agency’s reasons for
its actions were pretextual. As a result, the AJ found that Complainant had not been subjected
to discrimination as alleged. The Agency subsequently issued a final order fully implementing
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that, prior to December 2008, she could perform the duties
of her position without any accommodation. Complainant claims that the Agency would not let
her return based on the same emotional conditions she had prior to December 2008.
Complainant alleges that she has been labeled as Bipolar and permanently disqualified even
though she has fully recovered. Accordingly, Complainant requests that the Commission
reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to de novo standard of review, whether or not a hearing was held.

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An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519(1993).

In the instant case, the Commission finds that the AJ's determination that Complainant failed to
show that she was subjected to discrimination is supported by substantial evidence. More
specifically, Complainant’s medical condition was analyzed and reviewed by multiple doctors
and officials within and outside the Agency. Based on all of the available medical
documentation and analysis, the Federal Flight Surgeon concluded that Complainant suffered
from permanently disqualifying conditions. As a result, Complainant did not meet the
qualifications to perform the duties of the ATCS position. The Agency accommodated
Complainant by providing her administrative duties at the same pay level. While Complainant
desired a permanent administrative position, substantial record evidence supports the AJ’s
finding that Complainant failed to present evidence that she applied for or bid on any
permanent positions that may have been available as other employees who were medically
disqualified had done.

The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination. The record and facts gleaned at the hearing fail to disclose any evidence
purporting to show the Agency's actions were pretext for discriminatory animus. As a result,
the Commission finds that Complainant was not subjected to discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
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the final Agency order because 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 (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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 1, 2015
Date