0120112276
11-14-2012
William E. Yeager, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
William E. Yeager,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120112276
Hearing No. 451-2011-00021X
Agency No. HS-10-CBP-000863-120902
DECISION
Complainant filed an appeal from the Agency's final order dated February 18, 2011, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
The record indicates that Complainant filed the instant complaint on January 20, 2010, alleging discrimination based on perceived disability (depression) when on November 12, 2009, he was placed on indefinite paid administrative leave. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 31, 2011, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
On appeal, Complainant claims that his hearing request was improperly denied. However, he acknowledges that it was his attorney of record who failed to file his discovery requests in a timely manner. The attorney, states Complainant, also failed to communicate properly and in a timely manner with him during the hearing process.
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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Moreover, despite Complainant's contentions on appeal, we find the record was fully developed.
In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for placing him on paid administrative leave. At the relevant time period, Complainant was an Air Interdiction Agent (AIA), GS-1881-13, assigned to the Agency's Operations Center in Corpus Christi, Texas. As an AIA, Complainant was required to carry a weapon, work long, often irregular hours with varying shifts, and to fly and/or operate an aircraft. The position required Complainant to maintain an airman medical certificate by the Federal Aviation Administration (FAA).
Previously, Complainant held a position as an Airline Pilot, GS-2181-13, and then later, in 2000, he held a position as an Aviation Operations Analyst (AOA)/Operational Intelligence Officer Analyst (OIOA), GS-1801-13. As an AOA/OIOA, Complainant was not required to pilot aircraft and in 2000, he allowed his FAA medical certification he held previously to expire. On March 2, 2008, Complainant was reassigned to his AIA position which included a higher salary of Law Enforcement Availability Pay (LEAP). Initially, Complainant performed the duties of AOA/OIOA without piloting aircraft.
On October 28, 2008, the P-3 Operations Center Director of Air Operations (DAO) ordered Complainant to perform his AIA duties, including piloting the Center's P-3 aircraft. Thus, Complainant tried to obtain an airman medical certificate. But, the FAA denied the certificate on February 11, 2009, due to Complainant's mental conditions and his use of a certain medication. As a result, DAO instructed Complainant to complete an initial fitness for duty examination.
Doctor A examined Complainant on May 18, 2009, and referred him for a psychiatric evaluation by Doctor B. On July 17, 2009, Doctor B examined Complainant and considering Doctor A's report and AIA's position description, Doctor B recommended him for a psychological evaluation by Doctor C. On August 13, 2009, Doctor C examined Complainant. Considering Doctors A and B's reports and AIA's position description, Doctor C diagnosed Complainant with a Dysthymic disorder. On September 28, 2009, based on Doctors B and C's reports, the Agency's reviewing forensic psychiatrist, Doctor D, determined that Complainant was psychiatrically unfit for duty. Based on Doctor D's determination, on November 12, 2009, DAO placed Complainant on paid administrative leave at issue in the instant case.1
After a review of the record, the AJ found and we agree that the Agency articulated legitimate, nondiscriminatory reasons for placing Complainant on paid administrative leave; i.e., the FAA's refusal to issue Complainant an airman medical certificate. In addition, the AJ stated that although Complainant claimed that the FAA subsequently approved him for a second-class medical certificate on April 14, 2009, he was required to obtain first-class medical certificate as he was requesting medical certification for the first time upon being placed in the AIA position. Even if this were incorrect, the approval of the second-class medical certificate was beyond the date of the instant complaint and, furthermore, the record indicates that the Agency's interpretation of the FAA requirements was not made discriminatorily. Complainant failed to provide any evidence that he was treated less favorably than a similarly situated employee under similar circumstances. Assuming (without deciding) that Complainant was an individual with a disability, we find that Complainant failed to show that he was denied a reasonable accommodation or that the Agency's action was motivated by discrimination.2 Complainant does not allege that he was required to perform his duties beyond his medical restrictions.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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 (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
11/14/12
__________________
Date
1 In its appeal brief, dated April 20, 2011, the Agency indicates that Complainant has remained on paid administrative leave since November 12, 2009.
2 The record indicates that on November 2, 2009, Complainant requested a reasonable accommodation of telework to perform administrative duties, i.e., rather than his AIA position duties. We note that this matter is not a live issue in the instant case and Complainant does not contest that on appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112276