0120073283
06-26-2009
Renee K. Clark, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Renee K. Clark,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120073283
Hearing No. 451-2007-00120X
Agency No. ARFTSAM06JUN02406
DECISION
On July 17, 2007, complainant filed an appeal from the agency's June
12, 2007 final order 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., 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Legal Assistant, GS-05, Office of the Brigade Judge Advocate, Recruiting
Brigade, Fort Sam Houston, Texas. On August 17, 2006, complainant filed
an EEO complaint alleging that she was discriminated against on the
bases of disability (back injury) and age (53) when: (1) in or about
June 2006, contemporaneous with a mid-point performance review, her
supervisor (S1) also issued complainant a counseling statement; and (2)
in or about June 2006, in connection with a fitness-for-duty evaluation,
S1 requested that complainant provide additional medical documentation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned
to the case granted the agency's April 26, 2007 motion for a decision
without a hearing and issued a decision without a hearing on June 29,
2007, in favor of the agency. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she 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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The AJ noted the following undisputed facts in his decision.
Complainant's position required her to perform many duties on a
time-sensitive basis. In May 2005, S1 became the Brigade Judge Advocate,
and complainant's supervisor. He also supervised two other employees,
a GS-09 paralegal (C1) and a GS-12 attorney (C2). On June 19, 2006,
S1 issued complainant a counseling statement regarding her work hours
and attendance. During the same meeting, he also issued complainant a
required mid-point counseling statement. The written counseling statement
informed complainant that her current work hours needed to change in order
to better comport with the needs of the office.1 Likewise, the mid-point
counseling statement noted that complainant's frequent absences from work
hindered her progress in the areas of legal research and computer skills.
S1 believed that both statements dealt with similar issues and could be
discussed with the complainant and issued at the same time. Further,
because of complainant's sporadic work schedule, S1 was not sure when he
would have another opportunity to see complainant. The agency asserted
that there were no negative connotations or actions associated with
complainant receiving two counseling statements at a single meeting.
The undisputed record also indicated that complainant suffered from a
variety of medical conditions that required special accommodations.
Management accommodated complainant by providing her everything she
requested.2 Specifically, in March 2006, complainant's medical provider
indicated that reasonable accommodations for complainant should include
the following: (1) allowing complainant to change sitting, standing,
and walking positions at regular intervals throughout the day; (2)
not requiring complainant to bend, lift, push, pull, or kneel; (3)
not requiring complainant to engage in repetitive motions involving
the lower extremities; and (4) not requiring complainant to operate
machinery because of prescription medication that caused drowsiness.
The agency complied with all of these requests. Medical documentation
also indicated that complainant was severely mentally-incapacitated by the
heavy narcotic medication she was taking. In April 2006, another one of
complainant's medical providers documented in writing that complainant's
medical conditions caused incapacitating dizziness, requiring medication
and bed rest. The medical documentation also stated that complainant
should be allowed to leave work and go home whenever these symptoms
occurred.
The agency took appropriate actions in response to complainant's
reasonable accommodation requests. For example, her work schedule was
altered to compliment her medication schedule. Further, she was given a
private office to accommodate her need for low lighting. Consequently,
S1 and a paralegal had to share an office so that complainant could have
her own office with the requisite lighting and noise levels.
In approximately March or April 2006, S1 consulted with the Civilian
Personnel Advisory Center (CPAC) regarding a fitness-for-duty evaluation
(FFDE) of complainant. S1 believed a FFDE was necessary due to
complainant's sporadic work attendance and abbreviated duty days.
The purpose of the FFDE was to determine whether complainant was
able to perform the full scope of her duties, consistent with the
newer restrictions and accommodations raised in April 2006. The FFDE
was appropriately administered and completed in accordance with CPAC
regulations. By April 2006, complainant had used up all of her sick
leave and had almost used up all of the advanced sick leave donated to
her by others. Between April and September 2006, complainant worked an
average two days per week and generally less than eight hours per day.
In addition, starting in late September 2006, complainant stopped coming
to work altogether.
To facilitate the FFDE, on June 14, 2006, S1 provided complainant with
a written request in which he asked for additional medical documentation
to be forwarded through appropriate channels for completion of the FFDE.
In August 2006, a doctor employed by the agency (MD) reviewed the results
of complainant's FFDE, and determined that she was unfit to perform her
duties.
With respect to Claim 1, the AJ concluded that assuming, arguendo,
complainant established a prima facie case of discrimination, S1 satisfied
the agency's burden of articulating a legitimate, non-discriminatory
reason for issuing both counseling statements on the same day.
Specifically, the AJ noted that the undisputed record established that,
at the time S1 counseled complainant in June 2006, she was barely coming
in to work once or twice per week. Further, when complainant arrived
at work she was often heavily medicated or unable to stay more than a
few hours at a time. The AJ concluded that it was reasonable that S1
seized on an occasion when complainant was present to discuss her work
hours and her duties and responsibilities. The AJ also concluded that
complainant failed to show how S1's actions were discriminatory, or
how such action negatively impacted complainant's performance. The AJ
also noted the record to be devoid of evidence establishing that other
similarly-situated employees were treated more favorably.
With respect to Claim 2, the AJ concluded that the undisputed record
supported the finding that S1 requested current medical documentation
of complainant's medical condition in response to an increase in
complainant's physical restrictions and absence from work so that FFDE
could be completed regarding complainant's present ability to perform the
essential functions of her job. The AJ also concluded that complainant
failed to present sufficient evidence to show that S1's request was
motivated by discriminatory animus or was otherwise improper. Moreover,
the AJ noted that complainant failed to articulate a negative employment
action or harmful impact caused by the requirement that she provide
medical documentation to the agency doctors.
The AJ concluded that S1's request for a FFDE of complainant was not
motivated by discriminatory animus or bias against complainant because of
her age or physical disability. Rather, the AJ concluded that S1 acted
out of a legitimate concern that complainant was no longer able to perform
the essential duties of her position on account of a medical condition.
We assume for the purpose of this decision, without so finding, that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act. Based on a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, we agree with the conclusions reached by the AJ. We note
that the scheduling of the FFDE was job related and consistent with
business necessity. See Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans
with Disabilities Act (ADA), No. 915.002, pp. 6-8 (July 27, 2000).
The undisputed record establishes that S1 had a reasonable belief,
based upon objective evidence that complainant's ability to perform
essential job functions were being impaired by a medical condition.
The undisputed record shows that complainant was unable to report to work
on a consistent or predictable basis because of a medical condition.
We further find the record devoid of evidence of discriminatory animus
or pretext with respect to any of the agency's employment actions.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
we therefore 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 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 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
June 26, 2009
Date
1 The change in complainant's work hours is not at issue herein.
2 Complainant does not allege that she was denied a reasonable
accommodation.
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0120073283
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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