Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120120720 (E.E.O.C. Feb. 27, 2013)

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

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120120720

Hearing No. 451-2010-00230X

Agency No. HS-10-CBP-001121-140102

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
December 14, 2011 final Agency decision (FAD) concerning her 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’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Patrol (CBP) Officer at the Agency’s Field Office in El Paso, Texas. Complainant
entered duty under a two-year probationary period through the Federal Career Intern Program.
Prior to entering duty, Complainant was interviewed for a background investigation on
October 11 and 17, 2007. In the interview, Complainant indicated that she had never been
treated for a mental or emotional condition. Complainant’s background investigation returned
with favorable results, and Complainant entered duty on February 25, 2008, under the Federal
Career Intern Program.

Complainant was required to complete the mandatory Basic CBP Officer Training and Spanish
Training Programs before she could perform the functions of a CBP Officer. Complainant
completed the Basic CBP Officer Training Program in June 2008 and was scheduled to attend
the Spanish Training Program from July 30, 2008 through September 10, 2008, at the Federal
Law Enforcement Training Center (FLETC) in South Carolina. Three weeks into the training,
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Complainant was admitted to a psychiatric ward at the Charleston Memorial Hospital. After
she was discharged on August 19, 2008, Complainant indicated that she would not be returning
to the training class. Complainant was reminded that the Spanish Training Program was a
mandatory requisite of her position. Complainant did not inform the Agency as to why she
was admitted to the hospital or her diagnosis.

On August 20, 2008, Complainant returned to El Paso. The Agency’s Office of Workers’
Compensation Programs (OWCP) Coordinator asked Complainant to complete a Notice of
Traumatic Injury and Claim for Continuation of Pay/Compensation (CA-1) form because she
was admitted to the hospital during mandatory training. Initially, Complainant left many of the
questions blank and stated that she had sustained a back injury while attending the training.
After the OWCP Coordinator advised her that OWCP would need more information to make a
determination, she changed the cause of her injury to stress and anxiety.

Based on Complainant’s reluctance to provide more information regarding the incident that led
to her admission to the hospital and their belief that she may have been the victim of criminal
conduct, management notified the Department of Internal Affairs. Internal Affairs initiated an
investigation, and Complainant was placed in non-full duty status.

Complainant was interviewed by Internal Affairs twice during the investigation. Initially,
Complainant stated that she became ill with anxiety and stress on August 17, 2008, and was
admitted to the emergency room. Additionally, Complainant admitted that she had suffered
from a similar illness in October 2007, prior to being employed by the Agency and did not
disclose the information during her background investigation because the incident occurred
after it was complete. During her second interview, Complainant stated that she had been
treated for depression from October 30, 2007 through November 2, 2007, and that depression
was a pre-existing condition prior to her beginning employment with the Agency, but after her
application was submitted. Internal Affairs followed up with Complainant’s doctor who
responded that Complainant had been seen there from October 10, 2007 through November 2,
2007.

On August 22, 2008, Complainant requested “indefinite leave” until she was seen by her
doctor. On August 27, 2008, Complainant submitted documentation from her doctor stating
that she was given a psychiatric evaluation and could return to work immediately with no
restrictions. Complainant remained in non-full duty due to her failure to complete the Spanish
Training Program and the ongoing Internal Affairs investigation.

Management became concerned about Complainant’s fitness for duty. On September 2, 2008,
the Agency requested medical documentation to determine Complainant’s fitness for duty to
attend her mandatory Spanish training. Complainant provided two conflicting notes. One note
from her doctor indicated that she was diagnosed with major depression and could perform her
duties without restrictions while a second note from a psychologist stated that she would be
able to return to work on light duty for a week and then return to full work capacity. The
second note indicated that Complainant had experienced situational stress and some moderate
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degree of anxiety and that Complainant would benefit from weekly individual therapy sessions
to focus on stress management and self-calming skills. Based on the contradictory notes, the
Agency requested that Complainant undergo a fitness for duty examination (FFDE) on June
18, 2009.

Complainant underwent a FFDE and the FFDE recommended that Complainant be evaluated
by an endocrinologist followed by an independent psychiatric medical examination.
Additionally, the FFDE recommended that recent hospital records be reviewed prior to the
psychiatric examination. The Agency referred Complainant to an endocrinologist for an
evaluation of her thyroid and encouraged Complainant to submit documentation from her
doctor and any other source of treatment to assist in the medical assessment of her fitness for
duty.

The endocrinologist diagnosed Complainant with possible depression-related hypothyroidism
and concluded that Complainant could safely perform the full duties of her position, but
advised that Complainant should continue with the psychiatric evaluation. On August 25,
2009, Complainant went for a psychiatric FFDE. Complainant submitted two documents from
her doctors stating that she could perform the duties of her position. A psychiatrist (P1) at
Comprehensive Health Service examined Complainant and diagnosed her with Major
Depressive Disorder, Single Episode, Adjustment Disorder with mixed emotional features. P1
found that Complainant was capable of performing her duties; however, he noted that
Complainant had not submitted any documentation related to her October 2007 and August
2008 hospitalizations. P1 found the episodes somewhat puzzling and stated that he was forced
to try to understand them without the benefits of reviewing the records. As a result,
Comprehensive Health Services advised the Agency to have its psychiatric consultant review
the report based on this qualified finding.

An independent psychiatric consultant (P2), reviewed P1’s report along with all of the medical
notes Complainant had submitted to the Agency. On September 9, 2009, P2 concluded that
Complainant was not fit for duty and that P1’s finding was an error. P2 diagnosed
Complainant as having Dissociative Identity Disorder which he believed could impact the safe
performance of the duties of a CBP Officer. P2 further advised that a review of all medical
documentation, including her treatment in October 2007 and August 2008 was crucial before
arriving at any alternative decision. Accordingly, the Agency requested that Complainant
provide medical documentation related to those two episodes within two weeks. More than
two weeks later, Complainant provided some, but not all of the requested documentation. The
Agency’s Nurse Consultant reviewed the documentation and determined that Complainant had
not fully complied with the Agency’s request and the relevant medical records still had not
been provided.

The Agency’s Labor and Employee Relations Specialist informed Complainant that she had not
provided all of the needed documentation. Complainant responded that she was working on
getting the information. A month later, Complainant still had not submitted the requested
documentation. Since Complainant could not be rescheduled to take the mandatory training,
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the Director of Field Operations (DFO) decided to terminate Complainant’s probationary
employment on January 13, 2010, for failure to complete training, failure to follow orders, and
failure to disclose relevant information in background submission for employment.

On January 20, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the basis of
disability when:

1. On August 20, 2008, management initiated an Internal Affairs investigation of
her;

2. On September 2, 2008, February 27, 2009, and November 5, 2009,
management directed requests for medical documents;

3. From September 2008 until January 12, 2010, management assigned her to light
duty;

4. On May 9, June 29, and August 4, 2009, management directed her to undergo
Fitness for Duty Examinations (FFDE); and

5. On January 13, 2010, management terminated her employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant had established a prima facie
case of discrimination and determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (3), the Port Director (PD)
stated he kept Complainant on light duty status because Complainant withdrew from training
prior to completion, which was a condition of employment. PD explained that since
Complainant had not completed her required training, she could not work as a CBP Officer.
Complainant would be allowed to resume her training once she received medical clearance.

Regarding claim (5), DFO affirmed that she terminated Complainant’s employment because
Complainant was hired under an internship program that required her to successfully complete
a two-year program in order to be converted to a permanent appointment. DFO affirmed that
Complainant failed to complete the mandatory training, failed to cooperate with management’s
directions to submit requested medical information, and withheld required information during
her background investigation. As a result, DFO determined that Complainant was not a good
candidate for continued employment with the Agency.

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The Agency determined that Complainant had not established that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated against as alleged.

Finally, as to all claims, the Agency concluded that Complainant failed to establish that she
was subjected to discriminatory harassment. Rather, the evidence showed that Complainant's
failure to satisfy the requirements of her job and her failure to cooperate with management
prompted management’s actions. First, Agency regulations required management to keep
Complainant from full-duty status after she failed to complete training. Additionally,
Complainant's conduct motivated the Internal Affairs investigation. The Supervisory Program
Manager explained that Complainant’s refusal to explain the circumstances regarding her
withdrawal from training caused him to suspect that she had been harmed, which prompted
him to file a report with the Office of Internal Affairs. Finally, management cited
Complainant’s resistance to producing medical records and her failure to completely disclose
information relevant to her mental health as the bases for their actions. Accordingly, the
Agency concluded that management’s actions were not based on discriminatory animus. As a
result, the Agency found that Complainant had not been subjected to a discriminatory hostile
work environment as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency unreasonably delayed issuing a FAD after
the AJ dismissed her hearing request and remanded the matter back to the Agency.
Accordingly, Complainant requests default judgment in her favor as a sanction for the
Agency’s failure to timely issue a FAD.

ANALYSIS AND FINDINGS

As initial matter, the Commission shall address Complainant’s request for sanctions. The
Commission finds that the Agency did unduly delay in issuing its FAD. However, the
Commission is not persuaded that this delay constitutes any basis for finding on Complainant’s
behalf with respect to the issues raised herein. Therefore, the Commission finds that
Complainant is not entitled to a default judgment. The Agency is reminded that it is required
to issue the final decision within 60 days of receiving notification that a complainant has
requested an immediate decision from the Agency. 29 C.F.R. § 1614.110(b).

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was
a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
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articulate a legitimate, nondiscriminatory reason for its actions. See Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502 (1993).
In the instant case, assuming arguendo that Complainant has established a prima facie case of
discrimination, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, PD affirmed that Complainant was
assigned to light duty/non-full duty because she failed to complete the mandatory Spanish
Training Program and therefore could not yet perform the duties of a CBP Officer. ROI, at
93. Further, the Agency could not reschedule her for the training because she would not
cooperate with the Agency in their efforts to determine whether she was fit for duty. Id. at
289. Regarding her termination, DFO confirmed that Complainant was terminated based on
her failure to complete the training, her failure to follow orders for failing to cooperate with
the Agency, and her failure to disclose relevant information during her background
investigation. ROI, at 115-16. As a result, DFO determined that Complainant was not a good
candidate for continued employment with the Agency. Id. at 116.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons and that the Agency acted
on the basis of discriminatory animus. Complainant has failed to carry this burden.
Accordingly, the Commission finds that Complainant has failed to show that he was
discriminated against as alleged.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
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work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

The Commission finds that the record evidence does not support that Complainant was
subjected to a discriminatory hostile work environment as Complainant has failed to show that
the alleged incidents were unlawfully motivated by discriminatory animus. More specifically,
as to the Internal Affairs investigation, the Supervisory Program Manager affirmed that it was
not an investigation against Complainant; rather, Complainant refused to explain why she
abruptly left the training course and he was concerned that she may have been abused or
attacked. ROI, at 133. Complainant had gone missing for a period of time and when she was
found, she was disoriented and appeared agitated. As a result, he filed a report with the Office
of Internal Affairs to investigate the circumstances surrounding her absence at the training
center and the condition in which she was found. Id.

Regarding the Agency’s requests for medical documentation and fitness for duty examinations,
the Commission notes that the Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical examinations of employees. The
inquiry may be made or the examination ordered only if it is job-related and consistent with
business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer
must have a reasonable belief based on objective evidence that an employee will be unable to
perform the essential functions of her job or pose a direct threat because of a medical
condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002
(July 27, 2000), at Q.5. 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 her ability to perform essential job functions or will result in direct threat.
Id. It is the burden of the employer to show that its disability-related inquiries and requests for
medical examination are job-related and consistent with business necessity. See Cerge v. U.S.
Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).

The Commission finds that Agency management had a reasonable belief that Complainant
could not perform the essential functions of her CBP Officer position safely because of a
medical condition. Specifically, Complainant suffered an anxiety episode and went missing
for a period of time during her Spanish Training Program. ROI, at 121. Upon her return to
El Paso, Complainant refused to submit any documentation related to her hospitalization during
the training. ROI, at 121. As a result, the Agency did not know if she was a danger to herself
or others and was concerned as to whether she could make appropriate judgment calls as a
CBP Officer and carry a firearm. Id. Additionally, Complainant submitted conflicting
medical documentation. The Labor and Employee Relations Specialist (LRS) confirmed that
when the Agency is concerned about the mental health of one of its employees, it is standard
practice to first send that individual in for a regular medical examination before a
psychological examination. Id. During Complainant's initial medical examination, the doctor
believed that Complainant had some thyroid deficiencies and suggested that she go to an
endocrinologist. Her second FFDE was the visit to the endocrinologist and the determination
that the endocrinologist made had to do with her fitness for duty based only on the
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endocrinology perspective. The third FFDE was the psychological evaluation which was
precipitated by the events that occurred at the training center. Id.

Based on the record evidence, the Commission concludes that the Agency ordered Complainant
to undergo the FFDEs on the basis of objective evidence, that is, her anxiety episode at the
training center, evidence of a prior similar illness, and contradictory medical documentation
regarding her condition. Thus, the Commission finds that the Agency’s request for the FFDEs
was job-related and consistent with business necessity and did not violate the Rehabilitation
Act.

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
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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 (Nov. 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
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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

February 27, 2013
Date