01A10212
03-19-2002
Mary M. Brady, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Midwest Area Operations), Agency.
Mary M. Brady v. United States Postal Service
01A10212
March 19, 2002
.
Mary M. Brady,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Midwest Area Operations),
Agency.
Appeal No. 01A10212
Agency No. 4I-553-0013-99
Hearing No. 260-AO-9112X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
(FAD), dated August 29, 2000, concerning her equal employment opportunity
(EEO) complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act)<1>,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
the agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge (AJ) properly issued a decision without
a hearing granting summary judgment to the agency.
BACKGROUND
The record reveals that complainant, an applicant for a Casual employee
position at the agency's Northland District, Minneapolis-St. Paul, MN,
facilities filed a formal EEO complaint on December 22, 1998, alleging
that the agency had discriminated against her on the basis of disability
(depression) when, on October 29, 1998, she was questioned by the Medical
Unit about her mental problems during her preemployment processing and
the agency was requesting medical information. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The agency was hiring casual employees for the Fall and Christmas
mailing periods. Complainant applied for a Clerk position. On October
29, 1998, complainant filled out a Medical History Questionnaire during
the process. Two questions asked whether complainant had been treated
for a �mental problem� and four questions also addressed that issue.
As a result of complainant's answers to those questions, complainant was
interviewed by a Medical Unit nurse. The nurse asked complainant what
she was treated for and was told major depression. The nurse asked
complainant if she had a doctor and complainant said that she had a
psychiatrist and psychologist. The nurse asked complainant how long
complainant had been in treatment and if she was still being treated.
Complainant told her she first saw a therapist in June 1995 and had
been seeing her doctors on a regular basis since 1995. The nurse told
complainant that complainant had to get a release from her psychiatrist
before her employment processing would continue.
Complainant states that the interview with the nurse occurred before
any offer of employment was extended to complainant. In opposition
to complainant's statement, the Manager, Personnel Services, EAS-21,
for the Northland District states in his affidavit that complainant
was processed for hire by a personnel staff employee and sent to the
Medical Unit. The Manager concludes �This was a job offer.� The AJ
states that this is the crux of the case. The AJ recognized that if
employment had not been offered, questions asked about complainant's
mental health would have been a violation of the law. Although the AJ
found that the evidence as a whole shows that complainant was offered
employment, the AJ stated that there was no evidence that the offer was
clearly explained to complainant. The AJ also stated that the forms
given to complainant confuse the status of the person undergoing the
medical exam by referring to the individual as �applicant�which denotes
someone not yet hired, and also using the words �new hire.�
A review of the file indicated that the agency's �Applicant Checklist�
uses the phrase �Position applied for (Circle One),� and not, for example,
�Position hired into.� The blank Medical History Questionnaire included
in the investigative file states; �The Position I have been offered is:
[with seven specific positions and one line for Other]. However, a copy
of this form completed by complainant is not in the file. Complainant
testified that she was not given an offer. The agency has not provided
proof that it ever told complainant she had a job offer or provided any
signed statement or other writing which communicated a conditional offer
of employment.
The AJ issued a decision without a hearing. Having found complainant was
offered employment, the AJ found that complainant was not discriminated
against because of mental disability when she was questioned about mental
health problems during processing. The AJ concluded that complainant
failed to establish a prima facie case of disability discrimination
because there was no evidence that she suffered an adverse employment
action by being asked to give additional medical information.
The AJ also concluded that had the complainant made a prima facie
case of disability discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that complainant was placed on a Medical Assessment Hold status until
complainant's doctor provided the requested medical information to the
Medical Unit.
The AJ further concluded that complainant failed to establish that more
likely than not, the reasons provided by the agency were a pretext for
discrimination or retaliation. In reaching this conclusion, the AJ
found that the reason for the agency's action was that complainant did
not submit the requested medical information which would have allowed
the agency to determine if complainant was medically suitable for casual
employment. The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
Complainant requests that the decision of the AJ be reversed and, in
particular, contends that the AJ erred in crediting the statement of the
Manager that there was an offer of employment, a self-serving statement
of the Manager that was not supported by agency policy or procedure.
In response, the agency contends that the AJ correctly summarized the
facts and reached the appropriate conclusions of law.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive law, no genuine
issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a
court does not sit as a fact finder. Id. 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. An issue
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 F2d. 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(d) and (e). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is
still ripe for challenge, improperly deprives complainant of a full and
fair investigation of her claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley
v. United States Postal Service, EEOC Request No. 05950628 (October
31, 1996); Chronister v. United States Postal Service, EEOC Request
No. 05940578 (April 23, 1995).
The Commission initially notes that an employer may not ask an applicant
about disability-related questions until after it makes a conditional job
offer to the applicant. See Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans
with Disabilities Act (ADA), EEOC Notice No. 915.002 (July 27, 2000);
see also, EEOC Enforcement Guidance: Preemployment Disability - Related
Questions and Medical Examinations, EEOC Notice No. 915.002 (October
10, 1995). In this case, the agency asked disability-related questions.
Complainant testified that it was before she was ever given any offer
of employment by the agency. The Manager testified that the referral
of complainant to the Medical Unit was a job offer.
A conflict in the evidence exists and raises a genuine issue regarding
whether complainant was provided a conditional offer of employment.
Consequently, summary judgment was not appropriate in this case.<2>
In light of this ruling we do not examine whether this complainant
actually had or did not have a "disability" or the other issues raised
by the AJ's decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence not
specifically discussed in this decision, we find that there is a genuine
issue of material fact in this case concerning whether complainant was
given a conditional offer of employment. The Commission VACATES the
agency's final order and REMANDS the matter to the appropriate hearing
unit for further action consistent with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Milwaukee District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has
the right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e- 16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil action,
you have the right to file such action in an appropriate United States
District Court within ninety (90) calendar days from the date that
you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 19, 2002
Date
1 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.
2 A Rehabilitation Act claim alleging that the agency violated the
prohibitions on pre-offer disability-related inquiries and medical
examinations can prevail whether the applicant in question is disabled
or not. See, e.g., Watkins v. United States Postal Service, EEOC Appeal
No. 01981800 (August 29, 2001); see also EEOC Notice 915.002, Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the Americans with Disabilities Act (July 27, 2000),
at n. 15.