0120073957-McMurtrey
12-17-2009
Jerry K. McMurtrey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry K. McMurtrey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073957
Hearing No. 420-2007-00075X
Agency No. 4H-390-0052-04
DECISION
On August 22, 2007, complainant filed an appeal from the agency's July
9, 2007 final order concerning his 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
On January 27, 2004, complainant, a Rural Carrier at the agency's
facility in Terry, Mississippi, participated in a mediation conference
regarding a separate EEO complaint. During the mediation conference,
after complainant's opening statement, the Labor Relations Specialist
(LRS) made the remark, "that was asinine." Complainant became angry
and responded by yelling and walking out of the mediation. According to
the agency's Contract Mediator (ACM), during the mediation he observed
behavior from complainant that "did not fit the situation," indicating
anger and volatility, which visible frightened the Officer-in-Charge
(OIC) at the Post Office in Terry, Mississippi. Moreover, ACM indicated
that complainant's conduct during the mediation was abnormal and that
he was concerned for the safety of OIC, who had previously complained
about complainant's behavior. ACM expressed his concerns to the
Manager of Human Resources (MHR) for the Mississippi District regarding
complainant's actions, and his "thought of possible violence on the part
of complainant."
On January 28, 2004, MHR placed complainant in an immediate non-duty
(with pay) status pending the results of a fitness-for-duty examination.
On February 19, 2004, complainant submitted to the psychiatric
fitness-for-duty examination required by the agency. By letter dated
March 3, 2004, complainant was informed that the psychiatrist concluded
that complainant was fit for duty as a rural carrier, but recommended
that he received psychotherapy with anger management on a weekly basis
for 3 to 6 months. Therefore, complainant was instructed to return to
full duty effective March 4, 2004.
On May 10, 2004, complainant filed the instant EEO complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the bases of age (53) and in reprisal for engaging in
prior protected EEO activity when he was placed in emergency non-duty
status and required to undergo the psychiatric fitness-for-duty
examination.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case issued a decision
without a hearing on May 31, 2005. In his decision, the AJ determined
that the agency articulated legitimate, nondiscriminatory reasons
for its actions, which complainant did not establish were pretextual.
The agency subsequently issued a July 5, 2005 final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged. On August 5, 2005, complainant appealed
to the Commission. In McMurtrey v. United States Postal Service,
EEOC Appeal 0120055430 (February 5, 2007), the Commission determined
that this case was not appropriate for summary disposition. Therefore,
the Commission vacated the agency's final action implementing the AJ's
finding of no discrimination without a hearing, and remanded the matter
for a hearing.
The AJ held a hearing on May 22, 2007. The AJ issued a decision
finding no discrimination on June 18, 2007. After considering the
testimony of the witnesses (complainant and seven other witnesses), the
AJ concluded that complainant failed to establish a prima facie case of
age discrimination, but did establish a prima facie case of reprisal.
However, the AJ concluded that the agency has articulated legitimate,
nondiscriminatory reasons for sending complainant for a fitness-for
duty examination. Specifically, the AJ found that after the mediation
meeting management received a report from ACM expressing his concerns
regarding complainant's potential violent behavior, and that the agency
was required to take appropriate action. The AJ determined that based
on ACM's report the agency had a reasonable belief that the complainant
posed a threat sufficient to seek information about complainant's
medical's condition. The AJ also found that sending complainant for a
fitness-for-duty examination under these circumstances, was "job-related
and consistent with business necessity."
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates that he made no threats during the
mediation meeting nor acted inappropriately. Complainant argues that LRS
threatened him when he called him "asinine," and that he left the meeting.
Complainant also contends that the agency's action was only in retaliation
for his priors EEO activity.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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.
We concur with the AJ that the evidence does not support complainant's
claim that management was motivated by discriminatory or retaliatory
animus when he was required to undergo a fitness-for-duty examination.
Our review of the record establishes that the AJ's findings of fact are
supported by substantial evidence, and on appeal, complainant presents
no argument to challenge the AJ's credibility determinations.
In this case, the record reveals that complainant was required to
undergo a fitness-for-duty examination because of his disruptive and
aggressive behavior during the mediation meeting. ACM testified that
he has participated in approximately 100 mediations with the agency, and
complainant was the only employee he has ever made a report to the agency
concerning a possible threat of physical violence. MHR also testified
that after receiving the report from ACM indicating his concerns, he
had no option, other than to send complainant for a fitness-for-duty
examination. We conclude that the agency had a reasonable belief, based
on objective evidence, namely ACM's report, that complainant posed a
threat to himself or others. Accordingly, the Commission finds that the
agency acted permissibly in sending complainant for a fitness-for-duty
examination.
CONCLUSION
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 17, 2009
__________________
Date
2
0120073957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013