Betty Ledesma, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01985925 (E.E.O.C. Nov. 9, 2000)

01985925

11-09-2000

Betty Ledesma, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Betty Ledesma, )

Complainant, )

) Appeal No. 01985925

v. ) Agency No. 4-E-852-1105-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning her claim that the agency violated

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 et

seq., and the Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. � 621 et seq.<0> The appeal is accepted by the Commission in

accordance with 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue presented herein is whether the complainant has established that

the agency discriminated against her based on race (Mexican American),

color (brown), religion (Pentecostal), national origin (Hispanic), age

(43), mental disability (perceived stress), and reprisal (prior EEO

activity) when she was scheduled for a fitness-for-duty examination in

February 1995.

BACKGROUND

The complainant filed a formal complaint in January 1995 in which

she raised the issue identified above. Following an investigation,

the complainant requested a hearing before an administrative judge but

subsequently withdrew that request. The agency thereafter issued a

final decision (FAD) dated June 23, 1998, finding no discrimination.

It is from this decision that the complainant now appeals.

In examining the merits of the complainant's case, it is necessary to

address the chain of events that culminated in the agency's request that

she undergo the fitness-for-duty examination. The record reveals that

the complainant was hired by the agency as a letter carrier in 1985.

In 1991, the complainant was reassigned to a position in the agency's

Stamps By Mail (SBM) Unit in Phoenix, Arizona, after the Office of

Workers' Compensation Programs (OWCP) accepted her claim for work-related

stress. In April 1993, the complainant filed a second claim with OWCP

in which she characterized SBM as overly stressful due to harassment

and discrimination she had experienced.<0> By November of that year,

the complainant's condition had worsened to a point where she was not

following instructions and was insisting that her co-workers should all

be reassigned. As a result of this behavior, and because the complainant

refused to be reassigned, she was informed by the Injury Compensation

Office that she was being removed from SBM until a new position could

be found for her.

In January 1994, the complainant was examined by a psychiatrist

(Psychiatrist A) to determine her fitness for duty. Psychiatrist A

concluded that the complainant had a �psychiatric illness� and attributed

her problems in SBM to her inability to work with other individuals.

In this regard, he concluded, �Because of the reported continued

disruption she creates in the work place it would be appropriate to demand

some accommodation from her or allow her to seek employment elsewhere.�

The complainant was thereafter examined by another psychiatrist

(Psychiatrist B) in February 1994 and found to be �manifesting histrionic

and passive-aggressive dependent personality traits.� Psychiatrist B

noted that �[h]er need to act, be in the limelight, and make efforts to

receive social approval is profound.� He stated further:

Combining her superficiality, her acting, and the �holier than thou'

ongoing attitude, I can see where it would be very difficult for others

to have ongoing day-to-day contact with her and to have these put-downs

about what a good person is, what a good worker she is, and how much

better she is than they are, being stated and restated to others in one

form or another ... If some position could be found at the Post Office

where she has little or almost no contact with other people, it would

be in the interest of her peers.

Psychiatrist A thereafter reviewed Psychiatrist B's findings and

concluded, �[T]here appears to be no option but to let the complainant

seek employment elsewhere. If she is brought back to work, another job

would have to be created for her where she has no contact with other

employees ... It appears eminently clear that the complainant is unable

and unwilling to work with others.�

In mid-1994, the complainant submitted a request for light duty and was

informed, by letter dated October 26, 1994, that no work could be found

that was consistent with her medical restrictions. The complainant

was thereafter issued a letter dated December 12, 1994, notifying

her that she had been scheduled for a fitness-for duty examination

(FFDE) to determine her ability to work as a clerk. Although the

complainant initially objected, she was subsequently examined by a third

psychiatrist (Psychiatrist C) in February 1995. Psychiatrist C diagnosed

the complainant with probable dysthymic disorder and mixed character

disorder, and his characterization of her symptoms was consistent with

those of Psychiatrists A and B.

On appeal, the complainant does not focus on the FFDE, but, rather,

alleges in general terms that the agency's actions over the last

several years have been discriminatory. She also states that she has

been reinstated into her letter carrier position and argues that this

action is discriminatory.<0>

ANALYSIS AND FINDINGS

Disability

To establish a prima facie case of disability discrimination, the

complainant must demonstrate that: 1) she is an �individual with

a disability� as defined in 29 C.F.R. � 1630.2(g);<0> 2) she

is a �qualified individual with a disability� as defined in

29 C.F.R. � 1630.2(m); (3) she was required to undergo the FFDE. Id.

The complainant must also demonstrate a causal relationship between her

disabling condition and the FFDE. An �individual with a disability�

is defined as someone who: (1) has a physical or mental impairment

which substantially limits one or more of such person's major

life activities; (2) has a record of such an impairment; or (3) is

regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).

�Major life activities� include functions such as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i). Although the complainant

argues that she is merely regarded as disabled, the Commission finds

sufficient evidence to conclude that she has an actual disability.<0>

Specifically, it is apparent from the reports of Psychiatrists A, B,

and C that the complainant has a personality disorder that, as evidenced

by her problems in SBM, substantially limits the major life activity

of interacting with other individuals. See Enforcement Guidance: The

Americans With Disabilities Act and Psychiatric Disabilities, EEOC

Notice No. 915.002 (March 25, 1997), at 5. Accordingly, the Commission

finds that the complainant is an �individual with a disability.�

To the extent the complainant appears unable to perform any position in

which she has to work with other individuals, it is not apparent that she

is a �qualified individual with a disability.� Even assuming, arguendo,

that the complainant could make such a showing, we find she has not

met her ultimate burden of establishing discrimination. Specifically,

the evidence of record does not support a finding that the FFDE was

scheduled because the complainant is disabled. Instead, the evidence

supports a finding that it was scheduled to determine whether there was

a position into which she could be assigned in light of the limitations

found by Psychologists A and B.

Furthermore, the Commission finds that requesting the FFDE did not violate

the Rehabilitation Act. As of early 1994, medical reports indicated that

the complainant was unable to work in any position in which she would have

to interact with other employees. In this regard, the purpose of the FFDE

was to determine whether the complainant's condition had improved to a

point where she could be placed into a clerk's position. For this reason,

we find that the FFDE was in accordance with the Rehabilitation Act's

requirement that medical examinations of employees be �job-related and

consistent with business necessity.� 29 C.F.R. � 1630.14. Accordingly,

the Commission finds the complainant has not established that the agency

discriminated against her based on disability.

Race, Color, Sex, Religion, National Origin, Age, & Reprisal

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

is a three-step process. The complainant has the initial burden of

establishing a prima facie case. If the complainant meets this burden,

then the burden shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its challenged action. The complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

articulated by the agency was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

This analysis is equally applicable to claims brought under the ADEA. Loeb

v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

Even assuming that the complainant is able to establish a prima facie

case under the alleged bases, we find that the agency has articulated a

legitimate, nondiscriminatory reason for requesting the FFDE, i.e., to

determine whether the complainant could be placed into a clerk position.

The Commission finds that the complainant has offered no evidence

which demonstrates that this reason is pretextual. See St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, we find the

complainant has not established that the agency discriminated against

her based on race, color, sex, national origin, religion, age, or in

retaliation for her prior EEO activity.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that she was discriminated against as

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

11-09-00

Date Frances M. Hart

Executive

Officer

Executive

Secretariat

01 On November

9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect.

These regulations apply to all federal sector EEO

complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the

revised regulations found at 29 C.F.R. Part 1614,

where applicable, in deciding the present appeal.

The regulations, as amended, may also be found at

the Commission's website at www.eeoc.gov.

02 OWCP subsequently denied that claim. Additionally, the complainant

filed a civil action in Federal district court in which she alleged

that actions taken against her in SBM were discriminatory. That action

resulted in a finding of no discrimination.

03 The allegations raised by complainant in her appeal were not raised

with or investigated by the agency. Complainant is advised that if she

wishes to pursue, through the EEO process, the new allegations raised on

appeal, she shall initiate contact with an EEO counselor within 15 days

after she receives this decision. The Commission advises the agency

that if complainant seeks EEO counseling regarding these allegations

within the above 15 day period, the date complainant filed the appeal

statement shall be deemed to be the date of initial EEO contact, unless

she previously contacted a counselor regarding this matter, in which

case the earlier date should serve as the EEO counselor contact date.

Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request

No. 05970201 (January 16, 1998).

04 The 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.

05 In reaching this determination, we have also considered the

complainant's claim in light of the Supreme Court's recent decisions

in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy

v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertsons,

Inc. v. Kirkingburg, 527 U.S.555 (1999); Cleveland v. Policy Management

Systems Corp., 526 U.S. 795 (1999); and Bragdon v. Abbott, 524 U.S. 624

(1998).