0120073270
07-09-2010
Virginia Cofield-Gipson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Virginia Cofield-Gipson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120073270
Agency No. P20050004
DECISION
On July 12, 2007, Complainant filed an appeal from the Agency's June 8,
2007 final decision concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission MODIFIES the Agency's final decision (FAD).
ISSUES PRESENTED
1) Whether Complainant established that she was subjected to disparate
treatment and harassment; and
2) Whether Complainant established that she was subjected to an unlawful
medical exam and inquiry.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a WS-8 Cook Supervisor at the Federal Correctional Institution in
Talladega, Alabama. Complainant injured herself at work on January 13,
2004, when a metal food cart fell on her, and she filed a worker's
compensation claim. Complainant stated that she injured herself again
on April 17, 2004, by "tripping over a pallet." The Office of Workers'
Compensation Programs (OWCP) accepted Complainant's injury claims. For
the first injury, OWCP provided Complainant with 30 days of Continuation
of Pay (COP), and for the second injury, OWCP provided her with three
days of COP.
Complainant indicated that she was unable to perform the essential
functions of her Cook-Supervisor position and requested that management
provide her with a restricted light duty assignment as a reasonable
accommodation. The Associate Warden attempted to accommodate Complainant
by providing her with "light duty tasks." In this regard, Complainant
was assigned to listen to tape recordings of inmate phone calls, and to
supervise inmates while sitting at a desk. On June 17, 2004, Complainant
received a letter directing her to sit at a table in the inmate's dining
hall to monitor inmate movement. Complainant had been assigned to these
"light duty tasks" for over six months. On July 7, 2004, management
notified Complainant that her temporary light duty assignment would be
terminated. On July 8 and July 9, 2004, management charged Complainant
with annual leave when she did not report to work.
On August 5, 2004, the Associate Warden sent Complainant a letter
directing her to attend a "fitness for duty" medical examination
with a psychiatrist (Dr. E). Earlier, on June 23, 2004, Complainant's
physician could not find any physical problems with her and recommended
a psychological evaluation. On August 18, 2004, Complainant, as ordered,
went to Dr. E to undergo a psychological evaluation. The Agency gave
Dr. E eight criteria upon which to evaluate Complainant. Dr. E indicated
to Complainant that he could not evaluate her on these criteria because
they were inquires relating to her physical injuries. Dr. E indicated
to Complainant that he would only evaluate her from a psychological
standpoint.
Subsequently, Complainant failed to sign Dr. E's standard medical release
form. As a result, the Agency never received the documentation regarding
the evaluation from Dr. E. On October 10, 2004, Complainant received
a letter from the Associate Warden dated October 6, 2004. This letter
ordered Complainant to release her medical documentation from Dr. E. The
letter stated that her failure to release this medical documentation would
"lead to disciplinary action, up to and/or including removal." However,
Complainant was never disciplined by the Agency. The letter also noted
that since January 13, 2004, Complainant had been on COP, sick leave,
light duty, leave without pay, or absence without leave.
On October 5, 2004, Complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Black), sex (female),
disability, and reprisal for prior protected EEO activity when:
(1) she was subjected to a hostile work environment when management
ordered her to be evaluated by a psychiatrist, and ordered her to release
medical information from that evaluation.
(2) she was charged with annual leave on July 8 and July 9, 2004;
(3) on or about July 29, 2004, management refused to grant her
request for COP;
(4) management failed to provide her with the Claim for Compensation
Form (CA-7) in a timely manner, causing her pay to be interrupted;
(5) she was charged with Leave Without Pay (LWOP), Absent Without Leave
(AWOL), and sick leave (SL) in March, April, May, and June 2004;
(6) in May and June 2004, management segregated her from other staff
by directing her to perform tape monitoring duties in the staff lounge,
and also denied her request to utilize a vacant office for her duties;
(7) From June 17 through July 7, 2004, management jeopardized her safety
by ordering her to sit at a table in the inmate dining hall during the
noon meal; and
(8) In April 2004, management sent a letter to OWCP that contained
defamatory statements about her.
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). Subsequently, the
Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The
decision concluded that Complainant failed to prove that she was subjected
to discrimination as alleged.
Final Agency Decision
In its FAD, the Agency dismissed claims (5), (6), and (8) as untimely
pursuant to � 1614.105(a)(1). The FAD noted that the claims were discrete
acts that occurred outside of the 45 day time limit to contact an EEO
counselor. The FAD noted that Complainant contacted the EEO counselor
on August 14, 2004, and any alleged discriminatory act to be timely must
have occurred on or after July 1, 2004, which was 45 days before August
14, 2004.
In regards to claim (1), the FAD found that its request for Complainant
to provide current medical documentation was proper. Specifically,
the FAD found that the Agency was seeking more information concerning
Complainant's medical condition in order to provide her with a reasonable
accommodation. The FAD noted that Complainant was sent to Dr. E so the
Agency could obtain information concerning her medical diagnosis, when
she could return to work, and how her condition impacted her duties. The
FAD also noted that the Agency never received Dr. E's examination report
because Complainant failed to fill out Dr. E's medical release form.1
The FAD also noted that Complainant was not disciplined for not sending
her medical records from Dr. E to the Agency.
Regarding claim (2), The FAD found that management placed Complainant
on annual leave for July 8 and 9, 2004. In this regard, the FAD found
that there was no persuasive evidence in the record indicating that
Complainant was discriminated against because she was placed on annual
leave for those two days. For claim (3), the FAD found that there was
no evidence that her request for COP was denied. In particular, the FAD
found that Complainant's COP was stopped because she did not provide
proper medical documentation. The FAD noted that the Agency attempted
to contact Complainant for the required medical documentation to support
her April 17, 2004 injury, but she failed to respond to the requests.
Pertaining to claim (4), the FAD found that there was no evidence that
Complainant was not timely provided with Form CA-7. As to claim (7),
the FAD found at the time Complainant was assigned light duty, there
was no evidence that Complainant's doctors indicated that she should
stay away from inmates. The FAD also found no evidence that Complainant
told management that she felt unsafe around inmates, or that she asked
to stay away from inmates.
CONTENTIONS ON APPEAL
Complainant raises no new arguments on appeal.2 The Agency asks the
Commission to affirm the FAD.
ANALYSIS AND FINDINGS
Initially, we note that Complainant does not on appeal, specifically
challenge the decision to dismiss issues (5), (6), and (8) raised in her
formal complaint. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9,
1999) provides that the Commission has the discretion to only review
those issues specifically raised on appeal. Accordingly, we will not
address the Agency's dismissal of these issues in the decision herein.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Medical Inquiry (claim (1))
The Rehabilitation Act places certain limitations on an employer's ability
to make disability-related inquiries or require medical examinations of
all employees. An employer may require an inquiry or medical examination
of an employee only if the examination is job-related and consisted with
business necessity. Enforcement Guidance on Disability-Related Inquiries
and Medical Examinations of Employees Under the ADA (July 27, 2000),
at 5. This requirement is met when the employer has a reasonable belief,
based on objective evidence, that (1) an employee's ability to perform
essential job functions is impaired by a medical condition; or (2) that
an employee poses a direct threat due to a medical condition. Id. at
6-9. Objective evidence is reliable information, either directly observed
or provided by a credible third party, that an employee may have or has
a medical condition that will interfere with her ability to perform
essential job functions or will result in a direct threat. Id. at
7. Where the employer forms such a belief, its disability-related job
inquires and medical examinations are job-related and consistent with
business necessity. Id., see Janise v. United States Postal Service, EEOC
Appeal No. 01A13359 (September 19, 2002). The burden is on the Agency to
show that one of the criteria justifying the inquiry or examination was
met. Hampton v. United States Postal Service, EEOC Appeal No. 01986308
(July 31, 2002).
Here, we find that the Agency failed to meet its burden showing that a
psychological evaluation was needed in this case. Complainant alleged
that she was hurt physically and a psychological evaluation had no
bearing on whether she could perform the essential functions of her job,
or whether she posed a direct threat. The Agency indicated that it sent
Complainant for a psychological evaluation because her doctor could
not find anything physically wrong with her. However, the Agency has
presented no evidence that Complainant's mental state was at issue or
that it felt that she was unable to perform the essential functions of
her position because of a mental condition. In this regard, we note
that the criteria the agency provided to Doctor E all pertained to
Complainant's physical injuries.
The record indicates that the Agency ordered this psychological
examination and the records from it for reasons that were not job-related
and consistent with business necessity.3 See Bernal v. United States
Postal Service, EEOC Appeal No. 0720080038 (June 17, 2008) (holding that
the Agency violated the Rehabilitation Act when it requested medical
information when it did not believe that Complainant's medical condition
impaired his ability to perform the essential functions of his modified
position). Herein, the Agency has failed to meet its burden. We conclude
that the Agency did not demonstrate that the psychological inquiries
Complainant was required to undergo were job-related or consistent with
business necessity. Therefore, the Agency has violated the Rehabilitation
Act.
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that
the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Claims (2), (3), (4) and (7)
Assuming, arguendo, that Complainant established prima facie cases of
discrimination based on race, sex, disability, and reprisal, we find
that the Agency articulated legitimate nondiscriminatory reasons for its
actions. Regarding claim (2), the Agency noted that management terminated
Complainant's light duty status on or about July 7, 2004. As a result,
Complainant did not report to work on July 8 and July 9, 2004. Therefore,
the Agency charged Complainant with annual leave on those dates.
For claim (3), the Agency indicated that Complainant was asked to provide
policy-required documentation to substantiate doctor visits so she could
receive COP. SM's Deposition at 18. The Agency indicated that it attempted
to notify Complainant and her union representative that her doctor was
using the wrong claim number referencing her previous workers compensation
case. Id. The Agency also indicated that Complainant was being evaluated
by doctors that were not approved by workers compensation. Id. The Agency
further indicated that it telephoned and sent letters to Complainant
concerning these matters that went unanswered. Id.
In regards to claim (4), the Agency indicated that it attempted to
give Form CA-7 to Complainant on July 7, 2004, but she refused to
accept it. Id. at 22. The form was then issued to her supervisor who
then made it available to her union representative. Id. The form was
processed and received by OWCP on August 5, 2004. Id. On August 27,
2004, OWCP issued a check to Complainant for the time period from July
25 to August 23, 2004. Id. The Agency also indicated that another CA-7
Form was given to Complainant's union representative on September 3,
2004. Id. at 24. Regarding claim (7), the Agency indicated that there
was no evidence that Complainant told management that she felt unsafe
around inmates, or that she asked to stay away from inmates.
Complainant now bears the burden of proving by a preponderance of
the evidence that the Agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
Agency's preferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that Complainant failed to provide any
evidence of pretext in the record. Furthermore, we find that the record
is devoid of any evidence that the Agency's actions were motivated by
discriminatory animus towards Complainant's disability, race, sex or in
reprisal for her prior protected activity.
Harassment
To the extent that Complainant also alleges that she was subject to
a hostile work environment with respect to claims (2), (3), (4) and
(7), we find that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that complainant's claim of hostile work
environment must fail. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A finding
of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the
agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the FAD,
and REMAND this case to the Agency to take remedial actions in accordance
with this decision and Order below.
ORDER
The Agency is ordered to take the following remedial action:
(1) Within fifteen (15) calendar days of the date this decision becomes
final, the Agency shall give Complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) in support
of her claim for compensatory damages within forty-five (45) calendar
days of the date Complainant receives the Agency's notice. The Agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the Agency receives
Complainant's claim for compensatory damages. Thereafter, the Agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
(2) Within sixty (60) days of the date on which this decision becomes
final, the Agency shall provide EEO training for the Agency officials
involved in the decision to send Complainant for the "fitness for duty"
psychological examination. Such training shall focus on rights and
obligations under the Rehabilitation Act. The Commission notes that such
training is not considered disciplinary in nature.
(3) The Agency shall consider taking disciplinary action against the
Agency officials involved in the decision to refer Complainant for the
"fitness for duty" psychological examination. The Agency shall report
its decision. If the Agency decides to take disciplinary action, it shall
identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose
discipline.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Talladega, Alabama facility copies
of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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
___7/9/10_______________
Date
1 The FAD noted that Complainant sent a medical release dated October
13, 2004, to Dr. E that she had prepared herself; however, Dr. E wanted
Complainant to use his standard medical release form.
2 We note that although Complainant requested a hearing, the Agency issued
a FAD. Neither the FAD nor the record provides any indication as to why
Complainant's hearing request was not granted. However, as noted above,
Complainant has not raised this issue or any other on appeal; therefore,
we will not address this matter in our decision.
3 The Warden told the EEO counselor that she felt that Complainant was
not as disabled as she claimed and "is able to return to a full duty
status and is attempting to 'doctor shop.'" Report of Investigation,
Exhibit 1, EEO Counselor's Report, p. 4.
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0120073270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073270