0120071409
05-20-2009
Horatio Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Horatio Rodriguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120071409
Hearing No. 480-2006-00292X
Agency No. 4F926005806
DECISION
On January 16, 2007, complainant filed an appeal from the agency's
December 15, 2006 final order concerning his 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., 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(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
At the time of events giving rise to this complaint, complainant worked
as a Full Time Mail Processing Clerk, PS-05, at the Costa Mesa Center
Station, in Costa Mesa, California. On February 13, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (Hispanic1), sex (male), disability (unspecified),
and age (46) when on December 6, 2005, he was placed in a non-duty,
non-pay status and not allowed to return to work.
At the conclusion of the investigation, complainant was provided 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. Over the complainant's objections, the AJ assigned
to the case granted the agency's October 16, 2006 motion for a decision
without a hearing and issued a decision without a hearing on November
15, 2006. The agency subsequently issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, 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. Department of Defense, 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).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
The record shows that in a letter dated June 14, 2005, an agency Work
Improvement Analyst (WIA) expressed a concern that complainant's
"paranoia" regarding other employees could escalate into violence
if it were ignored. In response to WIA's letter, the agency sent
complainant for a Fitness for Duty Examination (FFDE) on June 27,
2005.2 A psychiatrist (P1) employed by the agency performed the FFDE
and submitted the report of his findings to an agency Occupational
Health Nurse Administrator (OHNA) on July 24, 2005. P1 diagnosed
complainant with "Adjustment Disorder (Not Otherwise Specified)," noting
that it would be helpful for complainant to participate in weekly or
twice-weekly individual psychotherapy in order to help him develop
constructive coping strategies for stress at work. P1 further stated
that complainant could return to work and function effectively so long as
he was enrolled in individual psychotherapy. P1 noted that complainant
had done some alarming things which seemed paranoid, such as stating
that he was being harassed and followed by coworkers near his home.
P1 further noted that complainant could do something dangerous and should
be clinically monitored through the individual psychotherapy. On August
15, 2005, P1 sent a letter to OHNA clarifying his opinion and stated that
if complainant did not attend individual psychotherapy on a consistent
basis he would not be able to return to work and function effectively.
On August 16, 2005, a physician in the agency's medical unit (P2)
reviewed the report and noted his concurrence with P1's opinion.3
On August 29, 2005, the Station Manager (S1) issued complainant an
"Emergency Placement in an Off-Duty Status without Pay" notice. The
notice indicated that on August 27, 2005, complainant failed to follow a
direct order and created a hostile work environment. The preponderance
of the record evidence indicates that on August 27, 2005, S1 met with
complainant for the purpose of having him sign a "return to work" letter
in which complainant agreed to undergo psychotherapy as a precondition
to returning to work. The record shows that S1 explained to complainant
that he would not be permitted to return to work if he did not sign
the letter. The record indicates that complainant refused to sign the
letter but would not leave the work place. After S1 repeatedly ordered
complainant to leave the workplace and after S1 felt he needed to call
the police for assistance, complainant finally left as the police arrived
on the premises.
The record also shows that on September 8, 2005, complainant signed
the "return to work" agreement, which required complainant to attend
weekly therapy sessions. Complainant worked for approximately two weeks.
Thereafter, complainant took leave for approximately one month so that he
could attend intensive psychotherapy at Kaiser Permanente. On November 7,
2005, Kaiser Permanente released complainant to return to work.
Upon his return to work, S1 advised complainant that he needed to provide
the Medical Unit documentation showing that he was attending regular
psychotherapy session or that he was no longer in need of therapy.
S1 further advised complainant that any independent medical opinion
needed to be reviewed and approved by the agency's medical staff.
Complainant provided a copy of his Kaiser Permanente receipt. However,
the documentation complainant provided to the agency only indicated that
complainant had been at the medical office but did not state whether he
had attended therapy, or that he was no longer in need of therapy.
On December 6, 2005, S1 did not allow complainant to work and placed him
in an off-duty status as he awaited receipt of further medical information
from Kaiser Permanente. S1 considered complainant a danger to himself
and others because he had failed to comply with the agreement signed on
September 8, 2005.
On December 28, 2005, a licensed social worker (LSW) sent a letter to
OHNA stating his belief that complainant was not a good candidate for
further treatment and did not pose a danger to his coworkers. On January
6, 2006, P2 issued a report, based upon his review of all the medical
records, including LSW's recommendations and a January 3, 2006 report
from P1. The recommendation by both P1 and P2 was that complainant had
not provided documentation that he was in weekly psychotherapy and that
he was not fit for duty until he was in compliance with that requirement.
The AJ agreed with the agency's arguments in the motion for a decision
without a hearing. Specifically, the AJ agreed that complainant failed to
present evidence to show that management's explanation for its decision to
keep complainant out of work was a pretext for unlawful discrimination.
The undisputed record shows that S1 was operating based on medical
opinions rendered by two different doctors pursuant to a FFDE which
determined that complainant could be a danger to himself or others.
Moreover, the undisputed record shows that complainant agreed to
the requirement that he engage in weekly psychotherapy sessions as a
condition of employment. There is nothing in the record to indicate
that Kaiser Permanente provided sufficient documentation to facilitate
complainant's safe return to work. Moreover, the AJ concluded that the
record was devoid of evidence to support a finding of discriminatory
animus on the part of any responsible management official.
We assume for the purpose of our decision, without so finding, that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act. We agree with the findings of the AJ and note
that complainant failed to present sufficient evidence in the record
to dispute the medical opinions of P1 and P2. We find no basis in the
record to disturb the AJ's decision. Therefore, based on a thorough
review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 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 (S0408)
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 (Z1008)
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
May 20, 2009
Date
1 We note that, under the regulations enforced by the Commission, the term
"Hispanic" denotes a national origin rather than a race group.
2 Whether it was appropriate for the agency to send complainant to a
FFDE is not at issue herein.
3 Complainant did not present any independent medical documentation that
contradicted P1 and P2's conclusions at this time.
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0120071409
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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