0120080247
04-12-2012
Sarah Sauls, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Financial Management Service), Agency.
Sarah Sauls,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Financial Management Service),
Agency.
Appeal No. 0120080247
Hearing No. 451-2007-00079X
Agency No. FMS-05-0305F1
DECISION
On October 15, 2007, Complainant filed a timely appeal from the Agency's September 10, 2007, final order 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., 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 Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether the AJ properly found no discrimination.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Human Resources Specialist, Financial Management Services in Austin, Texas. On September 19, 2005, complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability, age (over 40), and in reprisal for prior protected EEO activity arising under an EEO statute that was unspecified in the record when:
(1) On March 1, 2005, she was directed to take off from work, and the Agency placed her on annual leave;
(2) On April 15, 2005, she was placed on medical disability and not allowed to return to work until July 2005;
(3) On April 15, 2005, she was placed on "medical retirement" and told that if she sought a second opinion regarding her perceived bipolar disorder, she still would not be able to return to work;
(4) On an unspecified month and day in 2005, management told Complainant's co-workers that Complainant was returning to work at a lower grade;
(5) On an unspecified month and day in 2005, management told Complainant's co-workers that the Complainant was ordered to see a psychiatrist;
(6) On an unspecified month and day in 2005, management told Complainant's co-workers that she had the mental illness of bipolar disorder;
(7) On an unspecified month and day in 2005, management attempted to reassign Complainant and change her to a lower grade;
(8) After she returned to work in July 2005, Complainant's work was scrutinized, she failed to receive the materials required for her job, she was denied access to individuals to consult with at work, and she was subjected to offensive e-mails;
(9) After she returned to work in July 2005, Complainant was not provided with adequate work support;
(10) After she returned to work in July 2005, management failed to promote Complainant after telling her that she would be promoted;
(11) On October 7 and 27, 2005, Complainant was asked to provide management officials with telephone numbers of retired employees in violation of the Privacy Act; and
(12) On January 17, 2006, Complainant received her annual performance appraisal which contained an inaccurate assessment of her work performance.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an AJ. On May 3, 2007, the Agency filed a motion for a decision without a hearing. On May 17, 2007, Complainant filed her opposition to the Agency's motion. On June 4, 2007, the Agency filed a response to Complainant's opposition.2 On August 27, 2007, the AJ assigned to the case determined that the complaint did not warrant a hearing and issued a decision without a hearing finding no discrimination.
In her decision, the AJ found that Complainant failed to establish that she was forced to take annual leave, submit to a fitness for duty exam, or apply for disability retirement after being placed on administrative leave. The AJ noted that "[t]he record is replete with evidence that Complainant was, to use the Agency's phrase, 'no shrinking violet' . . . Complainant did not hesitate to challenge those management officials whom she felt were wrong . . . or whom she felt had wronged her." The AJ found that the Agency was justified in directing Complainant to have a mental evaluation based on the behavior she had exhibited at the office and a review of her medical documentation.
The AJ further found that Complainant failed to establish that the Agency attempted to force Complainant to accept a position at a lower grade upon her return to work; denied her a promotion; or informed Complainant's co-workers that she had been directed to see a psychiatrist, suffered from a mental illness, or was reassigned to a lower-graded position. The AJ also found that Complainant failed to establish that she was subjected to a hostile work environment. Finally, the AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons for denying her an "Outstanding" performance rating were a pretext for discrimination. The Agency issued a final order fully adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, through her representative, Complainant argues that the AJ erred in issuing a decision without a hearing because there are material issues of fact in dispute. Complainant argues that, despite the Agency's arguments to the contrary, the record evidence supports her claim that the Agency regarded her as disabled and left her no choice but to take annual leave, submit to a fitness for duty examination conducted by an Agency-chosen psychiatrist, agree to be placed on administrative leave, and apply for disability retirement. Complainant argues that the AJ found "without any authority, that the [A]gency was justified in directing [her] to have a mental examination." Complainant further argues that factual disputes exist with respect to her remaining allegations, including her contention that the Agency attempted to downgrade her position and denied her a promotion. She argues that "[t]here are two opposing positions regarding what occurred . . . [t]he issue - which position is correct - is a question of fact, not law." The Agency did not submit a statement in response to the appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 9, � VI.B. (Nov. 9, 1999). (both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing. 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 in dispute. 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). The Commission finds that the AJ herein erred in issuing a decision without a hearing because there are genuine issues of material fact in dispute.
We find that the AJ improperly relied upon credibility determinations throughout her decision with little regard or attention to gaps in the factual record and Complainant's contrary representations. 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 (Feb. 24, 1995).
For instance, the AJ relied upon declarations submitted by various Agency officials to find that Complainant failed to establish that she was forced to take two weeks of annual leave, submit to a fitness for duty examination, and apply for disability retirement. However, Complainant clearly disputed the Agency officials' statements in her own declaration. Complainant averred that she was ordered to take two weeks of annual leave to deal with her personal issues, required to submit to a psychiatric evaluation, placed on administrative leave, and forced to apply for disability retirement. Complainant's contention that she was opposed to applying for disability retirement is supported by the fact that she retracted her application after obtaining medical documentation from her physician indicating that she was not disabled and could return to work. Additionally, the Disability Program Manager averred in her declaration that Complainant had repeatedly indicated that she "did not really want to apply for disability retirement and she wished to return to work."
We are particularly troubled by the AJ's decision to consider witness credibility when finding that the Agency was justified in directing Complainant to have a fitness for duty examination. The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquiries or require medical examinations of employees. The inquiry made be made or the examination ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. �� 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002 (July 27, 2000), at Q.5. 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 direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. U.S. Dep't of Homeland Security, EEOC Appeal No. 0120060363 (Oct. 9, 2007).
Here, the AJ held that the psychiatric examination was justified in light of the fact that "over a period of months, [Complainant] cried at the office," and one of Complainant's supervisors averred in her affidavit that an Austin Police Department officer had called the official to confirm Complainant's employment with the Agency and "expressed concern and doubts about Complainant's mental status."3 Complainant disputes the AJ's holding because, although she cried at work during this time period due to personal issues she was having outside of the office, Complainant averred that she was able to perform her duties. Moreover, Complainant's positive performance evaluations during the relevant time period suggest that she was able to perform the essential functions of her position. We find that the witness testimony and evidence in the record creates a genuine issue of fact as to whether Complainant's supervisors had a reasonable belief that she was unable to perform the essential functions of her position or posed a direct threat, leaving unresolved the question of whether the Agency had a legitimate reason to require Complainant to undergo a fitness-for-duty examination.
In ruling on a motion for a decision without a hearing, the evidence of the non-moving party must be believed and all justifiable inferences must be drawn in the non-moving party's favor. This case contains conflicting testimony between Agency officials and Complainant regarding her disparate treatment and hostile work environment claims. While the Commission makes no judgment about the veracity of the statements made by any of the witnesses, this is precisely the type of evidence that is appropriate for cross-examination, elaboration and credibility determinations. The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEO-MD-110, Chapter 7, � 1; see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of [his] claims." Mi S. Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see also Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). There are simply too many unresolved issues which require an assessment of witness credibility. Therefore, judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Accordingly, after a careful review of the record, including Complainant's arguments on appeal and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's finding of no discrimination and REMANDS the matter for a hearing in accordance with this decision and the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's San Antonio Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, an AJ that has not previously been assigned to this matter shall be assigned to this case. The AJ shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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
April 12, 2012
Date
1 We note that the Agency number is also listed in the record as TD Case Number 05-2600.
2 We note that the Commission was not provided with copies of the Agency's motion for a decision without a hearing or its response to Complainant's opposition to the motion.
3 The AJ also found that the examination was proper given the psychiatrist's diagnosis that Complainant was bipolar. However, the psychiatrist's diagnosis occurred after the Agency's decision to require Complainant to submit to the fitness for duty examination, and, regardless, Complainant submitted medical documentation refuting the psychiatrist's diagnosis.
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0120080247
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080247