01984558
09-28-2001
Ruth F. Curley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ruth F. Curley v. United States Postal Service
01984558
09-28-01
.
Ruth F. Curley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984558
Agency No. 1H-336-1022-96
Hearing No. 150-96-8535X
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from a final agency decision (FAD) concerning
her allegation that the agency discriminated against her in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
by the Commission in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether complainant proved that she was
discriminated against because of her sex (female), age (52) and disability
(work-related stress) when, on November 30, 1995, she was placed in an
emergency off-duty status and subsequently issued a Notice of Removal
dated December 31, 1995.<1>
BACKGROUND
Complainant filed a formal complaint on February 20, 1996. Following an
investigation, she was provided a copy of the investigative file and
notified of her right to request a hearing before an EEOC Administrative
Judge (AJ). Pursuant to complainant's request, a hearing was held
on January 13, 1998. The AJ issued a decision, on January 20, 1998,
finding that complainant had not been discriminated against. On April 21,
1998, the agency issued a final decision that adopted the AJ's decision.
It is from this decision that complainant now appeals.
In November 1995, complainant worked as a Window Clerk at the agency's
Carrollwood Station in Tampa, Florida. On November 24, 1995, C-1,
complainant's fellow Clerk, approached her and the two became involved
in a heated argument. In September 1995, he had provided a statement
to the Union on complainant's behalf. Subsequently, he had a change
of heart about the statement and wanted it returned because he felt
that complainant was taking advantage of the situation by repeatedly
absenting herself from work. C-1 testified that he and other Clerks
were upset because when complainant was absent they had to cover for her.
A-1, the supervisor on duty, testified that he heard raised voices
and went to investigate. He saw C-1 and complainant arguing over her
attendance. A-1 separated the two by telling C-1 to return to work
and for complainant to take her break. However, instead of going back
to work, C-1 went to the room where complainant was taking her break
and their argument began again. At this point, complainant, according
to C-1, stated that, �Maybe one day I'll just come in and blow all the
clerks away.� C-1 reported complainant's alleged comments to A-1, who
directed him to write a statement. A-1 forwarded the statement to the
Inspection Service.
On November 30, 1995, complainant reported to work, but was met by A-1,
A-2, then Acting Manager of Customer Service, and A-3, her immediate
supervisor. She was not allowed to enter the premises. She was also
placed on off-duty status without pay. The Inspection Service conducted
an investigation on or about December 1, 1995. Complainant denied making
the threat that C-1 attributed to her. The Inspection Service concluded
that, based on the circumstances, no further investigation was warranted
at that time, but that administrative action, if considered appropriate,
was not precluded. On December 21, 1995, complainant was issued a Notice
of Removal.
A-2 testified that it was his decision that complainant be placed
on emergency off-duty status based upon the allegation of a threat
being made until the matter was investigated. A-3 stated that,
as complainant's supervisor, it was his decision to terminate her
based upon his determination that complainant had made the threat.
According to A-3, the agency had a zero tolerance policy against any
kind of violence in the work place, or of threats of violence.
With regard to her claim of disability discrimination, complainant
introduced into evidence medical documents indicating that she, as early
as 1993, had been treated for a depressed mood; and severe anxiety.
She was also diagnosed as having a �major depression, recurrent.�
Complainant also provided documentation linking her treatment for her
psychological impairment with her attendance problems at work.
Both at the hearing and on appeal, complainant maintained that management
used the incident with C-1 to mask its true reasons for wanting to remove
her, i.e., her record of absences caused by her psychological impairment.
In support of her contention, she cited C-1's testimony that, because
complainant's attendance was so poor, A-3 had told him and the other
Clerks that he wanted to terminate her and that he should have started
the process before she began documenting her absences with medical notes.
A-3 denied making the comments that C-1 attributed to him. According to
A-3, when complainant began being absent on a regular basis, he merely
told the other Clerks that she was either �sick or incapacitated.� A-3
insisted that he never discussed her specific medical problems with C-1
or any other employee.
With regard to complainant's allegation of disability discrimination,
the AJ found no evidence that complainant's major life activities
were substantially limited; therefore, he concluded that she was not a
qualified disabled employee as contemplated by the Rehabilitation Act.
Additionally, the AJ found that, although A-3 may have had other reasons
related to complainant's attendance for wanting to terminate her,
he used the threat she made to C-1 as the basis for her termination.
The AJ, having observed the demeanor of all the witnesses at the hearing,
concluded that complainant did in fact make the threat alleged by C-1.
The AJ also noted the absence of evidence that any individual outside
of complainant's protected group, accused of making the same or similar
threats, was not placed on emergency suspension and/or terminated from
employment. Finally, the AJ found that the fact that C-1initiated the
confrontation to have little bearing, because complainant's age and sex
had nothing to do with the reason for which he approached the complainant.
ANALYSIS AND FINDINGS
Disability Discrimination
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) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she 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.
Assuming, arguendo, that complainant is a qualified individual with
a disability, we find that the agency's actions did not constitute
disability discrimination. An agency is not precluded from enforcing
standards of conduct, as long as the standards are job-related, consistent
with business necessity, and enforced uniformly among all employees.
The Commission's Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, No. 915.002 (March 25, 1997)<2>
states that "an employer may discipline an employee with a disability
for engaging in . . . misconduct if it would impose the same discipline
on an employee without a disability." Id. at 29. In the present case,
the agency suspended complainant and issued a notice of removal because
she was found to have made a threat.<3> The unrebutted testimony of
management was that the agency had a �zero tolerance� of such comments.
This is clearly a standard that is job-related and consistent with
business necessity.<4>
Age and Sex Discrimination
Here, the AJ found no evidence of discrimination based on age or sex.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951)(citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
CONCLUSION
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 FAD because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
_____09-28-01_________________________
Date
1Over the agency's objections, the basis of disability was added at
the hearing.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
3The Commission has long held that the credibility determinations of
the AJ are entitled to deference due to the AJ's first-hand knowledge,
through personal observation, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996).
4But cf. Cheryl New v. USPS, EEOC Request No. 05960497 (January 18,
2000)(the Commission found that the complainant, an individual with
a disability, was denied a reasonable accommodation when management,
although aware that she took medication for the symptoms related to
bipolar disorder, failed to act on her request that she be allowed to
leave because she was not feeling well and was depressed. Subsequently,
complainant engaged in acts of misconduct that resulted in her removal).