01a44888
04-11-2005
Ethel M. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Ethel M. Mitchell v. United States Postal Service
01A44888
April 11, 2005
.
Ethel M. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A44888
Agency Nos. 1A-111-0101-99; 1A-111-0047-99
Hearing Nos. 160-A0-8181X; 160-A0-8619X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a Level 16, Supervisor District Operations at the agency's
Processing and Distribution Center in Queens, New York. Complainant filed
two formal EEO complaints. The first complaint was filed on March 23,
1999, and complainant alleged that the agency discriminated against
her in reprisal for prior EEO activity when, on August 19 and 20, 1999,
she was marked Absent Without Official Leave.
The second complaint was filed on October 26, 1999, and complainant
alleged that the agency discriminated against her on the bases of race
(African-American), color (black), disability (hypertension), age (59
years old, DOB: 9/8/40), and in reprisal for prior EEO activity when:
(1) on December 4, 1998, she was charged with .25 units of annual leave
for being late;
on December 17, 1999, she was issued a Letter of Warning charging her
with Failure to Follow Instructions and for Habitual Tardiness;
on January 5, 1999, she was instructed to attend a Fitness for Duty
examination; and,
on January 5, 1999, she was placed on administrative leave.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race, color, disability, age and/or reprisal discrimination.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in complainant's protected classes were
treated differently under similar circumstances. The AJ also found that,
even if complainant established a prima facie case of discrimination, the
agency articulated legitimate nondiscriminatory reasons for its actions.
In particular, the AJ found that complainant failed to report to work 10
minutes prior to the staff's arrival even though she had been made aware
to do so. The AJ also noted that individuals outside of complainant's
practice groups that were late received the same discipline. In regard
to the fitness for duty examination, the AJ found that the agency wanted
to determine whether complainant could meet the requirements of her job
and to ensure the employees' safety.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
Decision Without a Hearing
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
Medical Examination
The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (Enforcement
Guidance - Disability Related Inquiries), No. 915.002 (July 26, 2000)
and Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (March 25, 1997). Because the restrictions
on employers with regard to disability-related inquiries and medical
examinations apply to all employees, and not just those with disabilities,
it is not necessary to inquire whether the employee is a person with a
disability. Enforcement Guidance - Disability Related Inquiries, p.3.
Instead, we focus on the issue of whether the agency's order that
complainant undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical
examinations of employees only if it is job-related and consistent
with business necessity. 29 C.F.R. 1630.13(b), .14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
�job-related and consistent with business necessity� when an employer
�has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or, (2) an employee will pose a direct threat
due to a medical condition.� Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23.
The Administrative Judge concluded that other than complainant's own
subjective belief that she was discriminated against, she presented no
evidence from which a reasonable fact-finder could conclude that the
agency retaliated against her or subjected her to discrimination on the
bases of race, color, age or disability. The Administrative Judge thus
determined that a hearing was not required because there were no genuine
issues of material fact in dispute.
The Commission agrees with the FAD's conclusion that complainant did
not establish that she was discriminated against on the bases of her
race, color, age and disability, or that she was retaliated against
for engaging in protected activity. Specifically, the record evidence
does not establish that complainant was treated less favorably than
individuals similarly situated, but not within her protected groups.
The Commission also finds that even assuming, arguendo, complainant
established a prima facie case of race, color, age, disability and/or
reprisal discrimination, she did not prove by a preponderance of the
evidence that any of the agency's actions toward her were motivated by
discriminatory animus and/or retaliatory motive.
The Commission further concludes that the Fitness for Duty examination
ordered by the agency was not based on discriminatory animus.
Specifically, the record indicates that on December 15, 1998, complainant
alleged that she was experiencing elevated blood pressure, dizziness,
nausea, and blurred vision resulting from the stress of a manager's (M1:
Caucasian, white, known disability, 50 years old, no known prior EEO
activity) alleged yelling, threats, intimidation and the imposition
of disrespectful and unreasonable demands. On January 5, 1999, M1
attempted to explain to complainant a grievance that was held for her
return. Complainant informed M1 that she was going to the medical unit.
The record also indicates that complainant told the agency's medical
doctor that she felt dizzy, nervous and had blurred vision due to a
verbal altercation with M1. The doctor noted that complainant's blood
pressure was elevated.
On January 5, 1999, the plant manager and M1, informed complainant that
she would be placed on paid administrative leave pending a Fitness for
Duty examination as a result of her behavior whenever management spoke
to her. The agency also stated that the Fitness for Duty request was
granted based on the symptoms described by complainant and the fact
that complainant worked near machinery. The agency further stated that
a Fitness for Duty examination was appropriate because it would ensure
complainant's safety.
Upon review of the record evidence, we find that the agency met its
burden of showing that the decision to order complainant to undergo
the examination was job-related and consistent with business necessity.
Accordingly, we find that the agency did not violate the Rehabilitation
Act.
Based on the foregoing, and 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 order, because the Administrative Judge's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 11, 2005
__________________
Date