01972835
02-22-2000
Elizabeth A. Brewer, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Elizabeth A. Brewer v. Department of the Interior
01972835
February 22, 2000
Elizabeth A. Brewer, )
Complainant, )
) Appeal No. 01972835
v. ) Agency No. BIA-95-002
)
Bruce Babbitt, )
Secretary, )
Department of the Interior )
(Bureau of Indian Affairs), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of race (American Indian), national origin (Caddo), color
(light skin), sex (female), reprisal (prior EEO activity), age (DOB:
1/15/53), physical (stress, fainting spell), and mental disability
(forced medical examination), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> Complainant alleges she was discriminated against when:
(1) on June 24, 1994, she was placed on emergency administrative leave
from June 27 through August 15, 1994, until a medical assessment was made
of her ability to work; (2) her office refused to pay for her medical
assessment; (3) she was treated differently than co-workers with respect
to her assignments; and (4) she was charged AWOL (Absent Without Official
Leave). The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Secretary at the agency's Division of Trust Services,
Eastern Area Office, Bureau of Indian Affairs, Arlington, Virginia.
Complainant alleged that the Acting Chief of the Division of Trust
Services discriminated and retaliated against her for filing a complaint
against him in response to a Letter of Reprimand which he issued in
March of 1993.<2> In her affidavit, complainant alleged that the Acting
Chief refused to assign her any duties other than answering telephones,
and ordered that she be placed on administrative leave, and submit to a
medical assessment of her ability to work. Furthermore, she alleged that
when she went to her own private physician for the medical assessment,
the Acting Chief refused to pay the medical costs thereof. Finally,
complainant alleged that the Acting Chief assaulted her, and then charged
her with AWOL, despite her contention that she called in sick for the
days she was charged AWOL, and also submitted a doctor's note.
In response to complainant's allegations, the Acting Chief testified
that complainant was placed on administrative leave and was ordered to
submit to a medical assessment in response to a memorandum he received
from the Union Vice-President on June 24, 1994. In that memorandum,
the Vice-President of the Union reported to the Acting Chief that
complainant had approached her on June 23, 1994, and asked her if she
had any scissors. The Vice-President stated that complainant then began
to attempt to cut and poke at her wrists with the scissors. The Vice-
President of the Union reported that she grabbed complainant's wrists
and was able to calm her down, but that she was very concerned about
complainant's well-being, and suggested that the Acting Chief assist her.
Therefore, on June 24, 1994, the Area Director of the Eastern Area Office
issued complainant a memorandum which alerted her that effective June 27,
1994, she was placed on administrative leave so that she could obtain
medical assistance. The letter notified complainant that she could
contact the agency's Employee Assistance Program (EAP), or that she
could see a physician of her own choice. On July 1, 1994, the agency
issued complainant another memorandum clarifying its instructions.
Complainant testified that she contacted the agency's EAP, but was told
that it would be two weeks before she could be seen. Complainant was then
referred to another physician. On August 8, 1994, complainant's physician
reported that complainant did not have any psychiatric disorders,
but that she was experiencing frustration over workplace conditions,
which she perceived to be unfair. Complainant's physician stated that
complainant was not a threat to herself or others, but suggested that
complainant be supervised by another individual.
Complainant testified that following her return to work, the Acting Chief
"nitpicked" her time and attendance, and continued his practice of not
assigning her any duties other than answering the telephone. Complainant
also testified that the agency refused to pay for her medical assessment,
even after they gave her the option of seeing her own physician.
Finally, complainant testified that on September 9, 1994, the Acting
Chief called her into his office for an assignment. Since complainant
had been instructed not to be alone with the Acting Chief, she brought
a tape recorder in with her, and began recording the conversation.
An altercation ultimately ensued between complainant and the Acting
Chief, and complainant contended that she hurt her arm. Therefore,
complainant called in sick the following Monday and Tuesday, and was
placed on sick leave for those days.
However, the Acting Chief testified that complainant did not call in
on Wednesday or Thursday, September 14 or 15, and she was therefore
charged with AWOL for those days. He testified that although complainant
stated that she had in fact called in sick for those days, and that she
spoke with a senior staff person, he had spoken with the individual
cited by complainant, who denied speaking with complainant that day.
Furthermore, the Acting Chief testified that complainant did not submit
medical documentation for Wednesday or Thursday until December 1994.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on October 6, 1994. At
the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
On January 21, 1997, the agency issued a final decision finding that
complainant had been discriminated against with respect to her first two
claims. Specifically, the agency found complainant was discriminated
against on the basis of her mental disability when it ordered her to
undergo a fitness for duty examination based upon a perceived psychiatric
disability. The agency also found it discriminated against complainant on
the basis of reprisal when it ordered her to undergo a fitness for duty
examination, but failed pay the costs thereof. As corrective action,
the agency ordered that complainant be reimbursed for medical expenses
incurred when she obtained the medical assessment. She was directed
to submit medical statements documenting such expenses within 30 days
of receipt of the decision. Complainant was also directed to submit
documentation supporting her claim of compensatory damages. The agency
also ordered that complainant receive attorneys fee's and costs;
that it post a notice, provide training to the responsible officials,
ensure that complainant not be subjected to reprisal, and take any other
appropriate corrective action to ensure that this type of discrimination
does not recur.
The agency found, however, that complainant was not discriminated against
with respect to her final two claims. With respect to her third claim,
the agency found that complainant failed to establish a prima facie case
in that she failed to establish that similarly situated individuals
not in her protected classes were treated differently under similar
circumstances. Furthermore, the agency found insufficient evidence
that complainant's assignments had been taken away from her. In fact,
the agency found that the Acting Chief had attempted to give complainant
specific assignments, but that she was not receptive to them.
Finally, with respect to her fourth claim, the agency found that
complainant had only established a prima facie case of reprisal, since
the AWOL charges came in close enough time to complainant's EEO activity,
such that a causal connection could be inferred. However, the agency
also found that it had articulated a legitimate, nondiscriminatory reason
for its actions, namely, that complainant failed to properly notify the
Acting Chief or anyone else in the Division that she would be absent
on September 14-15. Furthermore, although he requested documentation
supporting the absence, complainant failed to submit such until December
14, 1994.
On appeal, complainant states the following:
I am appealing the [agency's] final agency decision of January 1997.
Therefore, I request your assistance and intervention to resolve my case
against [the Secretary of the Agency].
As a preliminary matter, we find that complainant's filing was intended
to be an appeal of that portion of the agency's decision which found
no discrimination.
The Commission further notes that once the agency has issued a FAD
finding discrimination, the agency is bound by that finding, and may
not relitigate the issue when the case is on appeal. Davis v. Dept. of
Justice, EEOC Request No. 05931205 (January 9, 1994), citing Rousseau
v. Dept. of Education, EEOC Appeal No. 01920410 (January 21, 1992).
As noted above, on January 21, 1997, the agency issued a FAD finding
that complainant had been discriminated against on with respect to
allegations 1 and 2. Accordingly, whether the agency discriminated
against complainant with respect to these issues is no longer at issue.
We therefore turn our analysis to complainant's allegations 3 and 4.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish a
prima facie case of discrimination on any of her cited bases with respect
to allegations 3 and 4, in that she failed to present sufficient evidence
that she was treated differently than any similarly situated individuals.
Furthermore, she failed to present any other evidence which would raise
an inference of discrimination. Assuming, arguendo, that complainant
raised a prima facie case, the Commission finds that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
In reaching this conclusion, we note that the Acting Chief presented
specific examples of instances where complainant refused to complete
assigned tasks. Complainant has failed to rebut this evidence, or prove
that she was not assigned duties because of one of her cited bases.
Furthermore, she failed to prove that she in fact called in sick on
September 14 and 15, as she contends, but that the Acting Chief cited
her as AWOL based on a discriminatory or retaliatory motive. Finally,
she failed to explain why she waited until December 1994 to submit her
medical documentation for her absence in September 1994.
Therefore, after a careful review of the record, we AFFIRM the FAD.
The agency is directed to comply with the ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days from the date on which this decision becomes
final, the agency shall request complainant to submit medical statements
and/or bills that document expenses she incurred for the fitness for
duty examination.
2. The agency shall determine the appropriate amount of back pay due
to the fitness for duty examination (with interest, if applicable)
and other benefits due complainant, pursuant to 64 Fed. Reg 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.501), no later than sixty (60) calendar days after the
date this decision becomes final. The complainant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the attorney's fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
4. The agency shall post a notice in accordance with the order below.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Arlington, Virginia, Bureau of Indian
Affairs 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
February 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Interior, Bureau of Indian Affairs, Arlington,
Virginia, (hereinafter referred to as "facility") supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The facility has been found to have violated the Rehabilitation Act
when it ordered an individual to undergo a fitness for duty examination
based upon a perceived mental disability. Thereafter, the agency
retaliated against the individual when it failed to pay the costs of
the examination. The facility was ordered to award the individual back
pay and associated benefits; to conduct a supplemental investigation into
complainant's entitlement to compensatory damages; to pay complainant's
reasonable attorney's fees and costs; and to post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1On 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2According to complainant's testimony, the Letter of Reprimand was
issued for insubordination, and was later reduced from a year to a 120
day period. The agency reports that complainant filed an EEO complaint
in response to the Letter of Reprimand, which the agency dismissed in
a final decision. According to the agency, complainant did not appeal
the dismissal.