0120093280
12-06-2011
Carrie M. Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Carrie M. Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093280
Hearing No. 532-2008-00091X
Agency No. 1C-441-0085-07
DECISION
Complainant filed an appeal from the Agency’s June 18, 2009 Notice
of Final Action 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. For the following reasons, the Commission
AFFIRMS the Agency’s Final Action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the Agency’s Cleveland Processing and Distribution
Center facility in Cleveland, Ohio. On October 18, 2007, Complainant
filed an EEO complaint alleging that the Agency discriminated against
her on the basis of a perceived disability (mental) when:
On September 5, 2007, Complainant was not permitted to return to work
without a psychiatric evaluation even though she had provided medical
documentation regarding her ability to return to work.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing. The AJ assigned to the case granted the Agency’s
January 7, 2009 motion for a decision without a hearing. The AJ issued
a decision without a hearing finding no discrimination on June 10, 2009.
The AJ found the material facts were not in dispute. AJ’s Decision
Without a Hearing (Ag Decision), June 10, 2009, at 1. Specifically,
the AJ observed that Complainant went to the Agency’s Medical Unit
in order to be cleared to return to work after an extended absence.
Complainant presented a disability certificate that the nurse would not
accept. The nurse asked Complainant to sign a general release for all of
her medical records, which Complainant refused to sign. Complainant was
then scheduled to be seen by the Agency’s physician (D1) on September
17, 2007. When Complainant arrived, the AJ observed, Complainant learned
that she was scheduled for a psychiatric evaluation. Complainant refused
to submit to the psychiatric evaluation and left. Complainant contacted
the Agency’s medical unit again and submitted additional documentation
on September 18, 2007, from her treating physician indicating that she
was not treated for mental or stress related reasons during her one year
absence from work and that she was mentally and physically able to return
to work. That medical documentation was also not accepted as sufficient
by the Agency’s medical unit. Id. at 2.
The AJ found that Complainant alleged that the Occupational Health Nurse
Administrator (N1) regarded Complainant as having a mental disability and
that because of that belief, N1 would not permit Complainant to return
to work until Complainant submitted to a psychiatric fitness for duty
examination.1 Id.
The AJ considered the Agency’s explanation for the incidents described
in Complainant’s complaint. Specifically, N1 explained that she
did not find the disability certificate that Complainant presented to
be sufficient to explain Complainant’s absence from work for over
one year. N1 stated that Complainant had reported a history of cardiac
and psychiatric issues that warranted concern. N1 explained that due
to a miscommunication, D1 thought the appointment on September 17, 2007,
was for a psychiatric examination. Id. at 3. Further, the AJ found that
Complainant was scheduled for a second examination with another physician,
D2, and that Complainant refused to cooperate in that examination. Id. 2
The AJ found that Complainant failed to establish a prima facie case
of discrimination based on a perceived disability because the AJ found
the record shows that she was not scheduled for or required to undergo
a psychiatric return to work examination as alleged. Id. at 5. On the
contrary, the AJ found that Complainant was scheduled for a psychiatric
examination due to miscommunication and in any event, the examination
was not conducted. Complainant was scheduled for a second evaluation
and when she refused, that examination was not conducted. Id.
Accordingly, the AJ found that Complainant was never scheduled for
a psychiatric examination but was sent to the Agency’s physician
after attempting to return to work following an extended absence for
which absence her medical documentation was deemed to be inadequate. Id.
Moreover, the AJ found that Complainant never underwent any examination,
physical or psychiatric, but that Complainant was returned to work as a
result of a grievance settlement. The AJ found none of the material facts
were in dispute, and that Complainant had not established that she was
perceived as having a mental disability and subjected to discrimination
by N1 on that basis. Id.
The Agency subsequently issued a Notice of Final Action adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged. ROA at 7.
ANALYSIS AND FINDINGS
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 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).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February
24, 1995).
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquires or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. §§ 1630.13(b), 1630.14(c). Generally,
a disability-related inquiry or medical examination of an employee
may be “job-related and consistent with business necessity” when
an employer “has a reasonable belief, based on objective evidence,
that: (1) an employee's ability to perform essential job functions
will be impaired by a medical condition; or (2) an employee will pose a
direct threat due to a medical condition.” See Enforcement Guidance
on Disability-Related Inquiries and Medical Examinations of Employees
Under the ADA (July 27, 2000) (Enforcement Guidance). “Direct threat”
means a significant risk of substantial harm that cannot be eliminated
or reduced by reasonable accommodation. 29 C.F.R. § 1630.2(r). It is
the burden of the employer to show that its disability-related inquiries
and requests for examination are job-related and consistent with business
necessity. Enforcement Guidance, at 15-23.
In the instant case, we find that the AJ’s decision without a hearing
is supported by the record and that she properly concluded that no
genuine issues remained in dispute to warrant a hearing. In finding
no discrimination, the AJ relied on the Agency’s statement that
Complainant was scheduled for a psychiatric evaluation with D1 after
a “miscommunication”. We find that Complainant was an employee
returning to work after an extended absence from work for which absence
the Agency properly sought a reasonable explanation and adequate
confirmation that Complainant was able to return to work safely.
We also note that no psychiatric examination was ultimately performed.
We find no material issues remain in dispute which require an assessment
as to the credibility of the various management officials, co-workers,
or Complainant.
CONCLUSION
The Commission AFFIRMS the Agency's Final Action finding no
discrimination.
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 (Nov. 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
December 6, 2011
__________________
Date
1 We note that in her affidavit, N1 distinguishes a Fitness For Duty
Examination (FFD or FFDE) from a return to work (RTW) evaluation.
The Agency states that Complainant was scheduled for a RTW evaluation
and not a FFD examination. Affidavit of N1, December 10, 2007 at 1,
ROA at 162, 163.
2 The AJ noted that Complainant grieved the Agency’s determination
that the medical information she supplied was inadequate, and Complainant
was returned to work on November 24, 2007. Id. at 4.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093280