01992623
12-20-2001
Linda C. Jutras, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Linda C. Jutras v. United States Postal Service (Northeast Area)
01992623
December 20, 2001
.
Linda C. Jutras,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01992623
Agency No. 1-B-029-0014-97
Hearing No. 160-98-8046X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the bases of
disability (unspecified) and reprisal for prior EEO activity under the
Rehabilitation Act when:
(1) on February 8, 1997, her Supervisor informed other management
officials, male co-workers, and the Postal Inspector that they could
put her �in shock� because she lost her EEO complaint;
on April 9, 1997, she was placed on administrative leave pending a
fitness-for-duty examination;
on May 20, 1997, she was ordered to sign a Last Chance Agreement or
be terminated.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant, a Flat Sorter Clerk at the agency's
Providence Processing and Distribution Center, Providence, Rhode Island,
filed a formal EEO complaint with the agency on May 27, 1997, alleging
that the agency had discriminated against her as referenced above.
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 disability or reprisal discrimination. Specifically, the AJ
found that complainant failed to establish reprisal in that she failed
to show that her prior EEO activity was causally connected to the
adverse employment actions alleged in the instant complaint. The AJ
further concluded that complainant failed to establish a prima facie
case of disability discrimination as she is not a qualified person with
a disability as defined by the Rehabilitation Act. The AJ found that
the preponderance of the evidence indicated that complainant could not
perform the duties of her position, or any other within the agency,
without posing a significant risk of substantial harm. Noting the
severity, longevity, and nature of the risk posed by complainant, the
AJ found that no reasonable accommodation was available to eliminate or
reduce the risk. Therefore, the AJ issued a finding of no discrimination.
The agency's final decision implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in issuing a finding
of no discrimination. Complainant argues that she does not have a
disability, and is not a threat to herself or others. She further
contends that the report from the agency's psychiatrist contains numerous
fabrications and that she never requested reassignment to less crowded
locations. In addition, she reiterates her contentions that she has
been threatened and assaulted by co-workers, subjected to �vicious
rumors,� placed under surveillance by management, and had a tracking
device implanted in her vehicle.
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 judgement a court does not
sit as a fact finder. Id. The evidence of the non-moving party must be
believed at the summary judgement stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is genuine if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celtotex v. Carett, 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, summary judgement is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ may
only properly consider summary judgement after there has been adequate
opportunity for development of the record. Our review of an AJ's legal
determinations and the decision to issue a decision without a hearing
pursuant to 29 C.F.R. � 1614.109 (g) is based on a de novo standard of
review. See EEOC Management Directive 110 (MD-110) Chapt. 9-16 (1999).
Here, assuming, arguendo, complainant has set out a prima facie case
of disability discrimination, the analysis may proceed to the issue
of whether the agency has satisfied its burden of proof to establish
that its disparate treatment of complainant based on her disability was
justified by a direct threat to safety. Van Parys v. United States Postal
Service, EEOC No. 01991100 (August 10, 2001). A direct threat is defined
as a significant risk of substantial harm which cannot be eliminated
or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). As we
have previously noted, the agency cannot exclude qualified individuals
with disabilities from employment based upon fear of a future risk of
injury. Zarate v. United States Postal Service, EEOC Appeal No. 01A00415
(January 8, 2001); Holmes v. United States Postal Service, EEOC Appeal
No. 01977073 (October 20, 2000). Rather, the agency must make an
individualized assessment of whether the individual poses a direct threat
of substantial harm, taking into account: (1) the duration of the risk;
(2) the nature and severity of the potential harm; (3) the likelihood
that the potential harm will occur; and (4) the imminence of the potential
harm. 29 C.F.R. � 1630.2(r); Massingill v. Department of Veterans Affairs,
EEOC Appeal No. 01964890 (July 14, 2000); Selix v. United States Postal
Service, EEOC Appeal No. 01970153 (March 16, 2000).
In the instant case, the record reveals that the agency did make an
individualized assessment as to the potential threat posed by complainant.
The undisputed evidence establishes that complainant has a history of
verbal confrontation with coworkers, and has, on numerous occasions
made serious accusations against them which have been investigated
by the agency and found to be groundless. The agency stated that as
the incidents escalated and began to disrupt the workplace and other
employees, management transferred complainant to another location
which afforded her the same schedule but required less interaction with
co-workers. The agency states that complainant was also given access
to a phone so that she could call her son or doctor when needed, and
that complainant approved of this arrangement. The agency contends that
despite these changes, complainant continued to have outbursts and make
accusations against other employees. On April 9, 1997, a meeting was
held with complainant and management to discuss the terms of a previous
settlement agreement and to address a diary of alleged incidents that
complainant had sent to the union. The agency states that complainant
became upset and agitated during the meeting and it became necessary to
escort her from the premises and place her in off-duty status, pending
a fitness-for-duty examination.
The subsequent fitness-for-duty evaluation report includes statements made
by complainant in which she threatens to kill certain co-workers, predicts
future bomb threats, and makes numerous �paranoid misinterpretations of
events around [her].� (R.O.I. page 74). Additionally, the report states
that with proper psychiatric care complainant would be fit for duty,
however her condition may lead to a �future situation of some potential
danger.� (R.O.I. page 74). In light of the results of the examination,
complainant was presented with a Last Chance Agreement, on May 20, 1997
which would have allowed her to return to work. Complainant refused to
read or sign the agreement, though, despite being given an additional week
to review it. The agency then issued complainant a Notice of Removal,
based upon her �hostile and threatening� behavior, past confrontations
with co-workers, and the results of the fitness-for-duty evaluation.
Complainant has adduced no persuasive evidence to show that these
legitimate, non-discriminatory reasons for the agency's actions are mere
pretext to mask retaliation or discriminatory animus toward complainant's
disability.
We note that an employer may not make disability-related inquiries, or
require a medical examination of any employee, unless the examination
is job-related and consistent with business necessity. See 29 C.F.R. �
1630.14(c); see also EEOC Enforcement Guidance: Disability - Related
Inquiries and Medical Examinations of Employees Under the Americans
With Disabilities Act (July 27, 2000) at General Principles � B &
n.3 (noting application of ADA standard to Rehabilitation Act claims).
Under this standard, disability-related inquiries or medical examinations
are permitted only where the employer has a reasonable belief that an
employee's present ability to perform essential job functions will be
impaired by a medical condition or that s/he will pose a direct threat due
to a medical condition. Id. at question 17. In the instant case, we find
that requiring complainant to submit to a fitness-for-duty evaluation was
appropriate given her past behavior and her demeanor during the meeting of
April 9, 1997. Further, we note that because the Last Chance Agreement
offered to complainant made the taking of medication a requirement
for continued employment, and such a requirement is impermissible
under Commission guidance, we concur with the AJ's conclusion that no
reasonable accommodation was available to reduce or eliminate the risk
of substantial harm. EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915-002,
at 32 (March 25, 1997). We, therefore, find no discrimination with
regard to complainant's allegations in the instant complaint.
After a careful review of the record, the Commission finds that there
are no material facts in dispute and summary judgment was appropriate in
this case. We further find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws. We discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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
December 20, 2001
__________________
Date