0120112701
06-18-2013
Nestor C. Domingo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Nestor C. Domingo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112701
Hearing No. 550-2010-00080X
Agency No. 4F-945-0007-09
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's April 25, 2011 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.
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Franklin Station Post Office in Napa, California. On August 9, 2007, the Agency sent Complainant for a psychiatric fitness-for-duty examination (FFDE).1 Complainant appeared at the FFDE with a July 29, 2007 report from a psychologist (P1) who had examined Complainant on two occasions in June and July 2007. Although P1 found that Complainant was fit for duty, the psychiatrist (P2) who conducted the August 9, 2007 FFDE concluded otherwise. In an August 15, 2007 report to the Agency's Associate Area Medical Director (AAMD), P2: (a) diagnosed Complainant with "Psychotic Disorder NOS paranoid type with delusions and hallucinations; (b) opined that Complainant's "delusional beliefs of persecution interfere with his ability to interact with others;" and (c) stated that Complainant's MMPI-2 exam results as well as "his behavior during the psychiatric interview and his historical inconsistencies" led him to conclude that Complainant was not fit to perform his duties at this time. After receiving P2's report, AAMD wrote to P1 about P2's diagnosis and findings. In a letter dated November 12, 2007, P1 reiterated his contrary opinion and noted, as he had in his July 29, 2007 report, that Complainant had been evaluated by other mental health professionals and had not been diagnosed with a psychotic disorder.
Because of the continuing disagreement between P1 and P2, AAMD decided to obtain a third opinion. In a letter dated January 3, 2008, AAMD sent Complainant a list of five area psychiatrists and asked that he choose one for an examination at the Agency's expense. Complainant asked instead that a psychiatrist recommended by P1 be used; however, when the Agency tried to set up the evaluation with Complainant's preferred psychiatrist, that psychiatrist was unavailable. The Agency again asked Complainant to select a psychiatrist from the list of five. When Complainant failed to do so, the Agency scheduled him for a May 15, 2008 FFDE with one of the psychiatrists on the list. In a letter dated May 6, 2008, however, Complainant's counsel informed the Agency that "[Complainant] does not feel that he will be given a fair shot with the Agency designated psychiatrist and declines to participate."
On September 18, 2008, the Agency issued Complainant a Notice of Proposed Separation. Subsequently, on October 10, 2008, the Agency notified Complainant that he would be separated effective October 26, 2008.
On December 24, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Filipino), color (Brown), disability (perceived mental impairment), age (60), and reprisal for prior protected EEO activity when, effective October 26, 2008, he was separated from the Agency.2
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the EEOC Administrative Judge (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. Dep't of Def., 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, national origin, color, disability, age, and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for separating Complainant; namely, Complainant refused to attend the May 2008 FFDE, which was needed to resolve the conflicting medical opinions from P1 and P2 about whether he was fit for duty. Specifically, AAMD testified in his affidavit that, because P1 and P2 reached contradictory conclusions as to whether Complainant had a psychotic disorder and was fit for duty, he "felt it was necessary to get an independent (Third Opinion)." In addition, AAMD testified in his affidavit that he provided Complainant with a list of psychiatrists to choose from for the FFDE, but Complainant did not cooperate. Similarly, the September 18, 2008 Notice of Proposed Separation stated that Complainant failed to attend the "3rd opinion" FFDE and, as such, was still not fit for duty.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination on the bases of race, national origin, disability, age, or reprisal. Upon review, we find that Complainant failed to establish that, more likely than not, the Agency's reason was pretextual. We will now address Complainant's arguments on appeal.
First, Complainant argued that the May 2008 FFDE was unnecessary because P1's report, along with other medical documentation he submitted, stated that he did not have a psychotic disorder and could perform his job duties. Although Complainant may believe that the May 2008 FFDE was unwarranted, we find that the May 2008 FFDE did not violate the Rehabilitation Act because it was "job-related and consistent with business necessity." Specifically, we find that the Agency had a reasonable belief, based on objective evidence, that Complainant's ability to perform essential job functions would be impaired by a medical condition. The record reflects that the Agency scheduled Complainant for the May 2008 FFDE after receiving conflicting psychiatric assessments from P1 and P2 about whether Complainant had a psychotic disorder and, if so, whether it impaired his ability to perform essential job functions. Although Complainant asserted that the Agency should have relied on P1's report and discounted P2's report, we find it reasonable for the Agency to try to reconcile the conflicting medical reports by requiring Complainant to attend a subsequent FFDE in May 2008.
Second, Complainant argued that the Agency's actions - requiring him to attend the May 2008 FFDE and separating him when he refused - violated the terms of a July 9, 2007 grievance settlement agreement. To the extent that Complainant is claiming that the Agency breached the terms of a grievance settlement agreement, we find that the proper forum where Complainant should have raised the Agency's alleged breach of the grievance settlement agreement was within the grievance process itself. See Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 24, 1993). Such a breach claim is outside of the Commission's jurisdiction and we decline to address it in this decision.
Third, Complainant argued that an April 19-20, 2007 email exchange between management and AAMD shows that his prior EEO activity was a factor in sending him for a FFDE. Specifically, Complainant asserted that the emails show that AAMD learned about his EEO activity in April 2007 and not, as AAMD testified, in May 2007. In addition, Complainant asserted that the emails show that the Agency's stated reasons for sending him to a FFDE in May 2007 were false. We do not find, however, that the April 2007 emails show that the Agency's actions at issue in the instant complaint - requiring Complainant to attend the May 2008 FFDE and separating Complainant - were retaliatory. The undisputed record reflects that AAMD was aware of Complainant's prior EEO activity before requiring Complainant to attend the May 2008 FFDE. There is no evidence, however, that AAMD had a retaliatory motive in requiring Complainant to attend the May 2008 FFDE. Moreover, we note that the emails concern the Agency's decision to send Complainant to a May 2007 FFDE - something not at issue in the instant complaint.3
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final order, because the AJ'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 (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 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
___6/18/13_______________
Date
1 Complainant filed a prior EEO complaint (Agency No. 4F-945-0179-07) alleging, among other things, that the Agency discriminated against him when it required him to attend the August 9, 2007 FFDE. The prior complaint involved the issue of whether the Agency's decision to send Complainant to the August 9, 2007 FFDE was discriminatory. The adjudication of the prior complaint, however, does not preclude us from discussing the results of the August 9, 2007 FFDE in the context of the instant complaint.
2 Initially, the Agency dismissed Complainant's complaint for alleging the same matter in a prior EEO complaint (Agency No. 4F-945-0179-07). In Nestor c. Domingo v. U.S. Postal Service, EEOC Appeal No. 0120091441 (July 23, 2009), the Commission reversed the Agency's final decision and remanded the matter for further processing.
3 Complainant's May 3, 2007 FFDE was the subject of a previous complaint which was dismissed for the untimely filing of the formal complaint. See Domingo v. U.S. Postal Serv., EEOC Appeal No. 0120073677 (Oct. 29, 2007).
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0120112701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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