0120070532_Wilmore
03-10-2009
Peggy A. Wilmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peggy A. Wilmore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070532
Hearing No. 170200500372X
Agency No. 1A079001604
DECISION
On November 7, 2006, complainant filed an appeal from the agency's October
6, 2006 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 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
At the time of events giving rise to this complaint, complainant worked
as a Transfer Clerk at Newark Airport Center, located at Newark Liberty
International Airport, New Jersey. Complainant's duties included
operating a vehicle in an area with moving commercial aircraft carrying
both postal mail and passengers. Because of the responsibilities of
this position, the employee is subject to medical evaluation to ensure
that he or she is fit for duty.
Complainant's supervisor stated that on August 5, 6, and 10, 2004,
she observed complainant acting erratic, aggressive, argumentative,
and hostile. Further, complainant began to display poor attendance.
The supervisor believed that complainant's behavior warranted a
fitness-for- duty examination (FFDE). Further, on August 10, 2004,
complainant experienced an anxiety attack and was taken to the hospital,
where she was prescribed medication.
On September 1, 2004, complainant underwent a psychiatric examination
as part of the FFDE provided by an agency psychiatrist. The agency
psychiatrist found complainant to be "high risk" and recommended
urgent and intensive psychiatric treatment. The agency psychiatrist
urged management to remove complainant from the workplace. Further,
he recommended that complainant be placed on medical leave until a
psychiatrist finds that she made enough progress in treatment to render
her safe to return to work.
Management placed complainant in emergency off-duty status on September
14, 2004, and she was advised by a supervisor to undergo psychiatric
treatment. Further, complainant was informed that prior to returning
to work, she had to provide documentation from the agency's Medical Unit
stating that she was fit for duty.
On the same day, complainant went to the Irvington Counseling Center,
a private psychiatric facility, for an initial evaluation. The Director
of the Center, who is not a physician, wrote to the agency psychiatrist
and stated that complainant reported that she suffers from hypertension
and has no history of psychiatric illness that would prevent her from
resuming her duties. Two weeks later, a psychiatrist from the Center
wrote to the agency psychiatrist and informed him that complainant was
taking medication and receiving weekly counseling, and was able to return
to work.
As a result of the conflicting medical opinions of the agency psychiatrist
and complainant's private psychiatrist, complainant was evaluated by
a third-party psychiatrist on October 8, 2004. On November 23, 2004,
the third-party psychiatrist submitted a report in which he diagnosed
complainant as having Paranoid Personality Disorder, and concluded that
the disorder has reached delusional intensity which has led to conflicts,
both at work and in her personal life. The third-party psychiatrist
agreed with the agency psychiatrist that complainant needed to undergo
intensive care before returning to work.
On January 3, 2005, complainant's supervisor notified complainant that in
compliance with the third-party psychiatrist's report, complainant must
undergo a period of approximately two months of medication stabilization
before she would be allowed to return to work. On March 3, 2005, the
psychiatrist from the Irvington Counseling Center informed the supervisor
that complainant's treatment consisted of medication monitoring once
a month and counseling twice a month. Further, the letter stated that
complainant was stable and able to return to work. On March 10, 2005,
complainant was instructed to return to work.
In December 2005, the agency requested that complainant again be examined
by the third-party psychiatrist. The third-party psychiatrist found
that complainant continued to experience paranoia and that she was
non-compliant with her medication and other treatment. As a result,
on January 26, 2006, the agency psychiatrist found that complainant was
"high risk" and that she could not perform the essential functions of her
position based on the third-party psychiatrist's report. On February 1,
2006, she was again placed in emergency off-duty status.
Complainant filed a formal complaint of discrimination on the bases of
race (African American), sex (female), age (DOB: 09/10/1947), perceived
disability (Paranoid Personality Disorder),1 and in reprisal for prior
protected EEO activity when, on September 14, 2004, she was found mentally
unfit to perform her duties and was placed in emergency off-duty status.
Complainant subsequently amended her complaint to further allege that
she was subjected to discrimination in reprisal for prior protected EEO
activity when, on February 1, 2006, she was again found mentally unfit
to perform her duties and was placed in emergency off-duty status.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's April 28, 2006 motion for a decision
without a hearing and issued a decision without a hearing on September
29, 2006. The AJ found that complainant failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were
pretext for discrimination. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
Decision without a Hearing
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). 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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing). Here, we
find a decision without a hearing was appropriate, as no genuine issue
of material fact exists, both parties were provided with ample notice
of the proposal to issue a decision without a hearing, a comprehensive
statement of undisputed material facts was provided, both parties had
the opportunity to respond, and both parties engaged in discovery.
Disparate Treatment
Complainant asserts that she was disparately treated based on her race,
sex, age, perceived disability, and in reprisal for her prior protected
EEO activity when she was given a fitness for duty exam and placed on
emergency off-duty status. To prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by
demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we will assume without so finding that complainant established
her prima facie cases of discrimination.
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, complainant was acting erratic, aggressive,
hostile, and argumentative, and she was having attendance issues.
The agency asserts that as a result of this behavior, it was justified
in requiring complainant to undergo a FFDE. Further, after the agency
psychiatrist and a private psychiatrist could not agree on whether
complainant was fit for duty, a third-party psychiatrist concluded that
complainant was not fit for duty. As a result, complainant was placed
in emergency off-duty status.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons are pretext for
discrimination. Complainant denies that she was erratic, aggressive,
hostile, or argumentative. Complainant stated that there were issues
with her supervisors, but it was their fault, not hers. Finally,
complainant focuses on the fact that the private psychiatrist found that
she was fit for duty. We find that a preponderance of the evidence
in the record supports the agency's articulated reasons for placing
complainant in emergency off-duty status. Initially, the record supports
the supervisor's assertions that complainant was acting erratic and a
fitness for duty evaluation was warranted. Additionally, two out of
three psychiatrists that evaluated complainant found that she was not
fit for duty. The deciding psychiatrist was a neutral third-party, and
not biased by agency affiliation. Further, complainant was found to be
"high risk," and it was recommended that she undergo intense psychiatric
care before being allowed to return to work. The record also establishes
that complainant was not consistent with her medication and treatment,
warranting another FFDE in December 2005, which resulted in complainant
being placed in emergency off-duty status for the second time. Complainant
failed to offer evidence that would establish that discriminatory animus
towards her race, sex, age, perceived disability, or her prior protected
EEO activity more likely than not influenced the agency's decisions.
Therefore, we find that complainant failed to establish the agency's
legitimate, nondiscriminatory reasons are pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order, because a preponderance of the evidence in the record does
not establish that discrimination occurred as alleged.
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
March 10, 2009
Date
1 We note that on appeal the agency asserts that complainant did not
raise disability as a basis at the hearing level. However, the record
establishes that disability was raised at the hearing level, and the
AJ considered disability as a basis in his decision. Further, a fair
reading of the record reveals that complainant has raised disability as a
basis throughout the EEO process, including during the counseling stage.
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0120070532
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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