Bell S.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Dec 8, 2017

0120151968 (E.E.O.C. Dec. 8, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bell S.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120151968

Hearing Nos. 551-2012-00045X, 551-2012-00125X, 551-2-12-00157X

Agency Nos. BLM-11-0165, BLM-11-0549, BLM-12-0180

DECISION

On May 6, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 26, 2015 final action concerning her equal employment opportunity (EEO) complaints
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. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS in part and VACATES in part the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a seasonal Fire
Dispatcher for the Bureau of Land Management in Fairbanks, Alaska.

Complainant filed three EEO complaints on May 2, 2011, September 30, 2011, and February 3,
3012, with subsequent amendments, alleging that the Agency discriminated against her on the
bases of race (Asian), color (brown), national origin (Vietnamese), sex (female), disability (post-

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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traumatic stress disorder/anxiety), and in reprisal for protected EEO activity between 2007 and
September 2012.

At the conclusion of the investigation of her complaints, Complainant was provided a copy of the
investigative file and requested a hearing before an EEOC Administrative Judge (AJ) for all
three complaints. The AJ consolidated the three complaints for joint processing. Complainant
filed three motions for summary judgment. The Agency filed a cross-motion for summary
judgment in its favor on all claims. Both parties filed responses and replies. The AJ ruled on the
motions at the same time and issued a decision without a hearing on March 13, 2015. The AJ
ruled in the Agency’s favor on all claims.

In his decision, the AJ noted that in her first complaint (BLM-11-0165), Complainant made her
first EEO contact on January 25, 2011, alleging many incidents and claims dating back to 2007.
The AJ found those claims pre-dating the 45-day deadline for initiating an EEO complaint (on
December 10, 2010) were stale and dismissed those claims based on untimely EEO Counselor
contact.

With regard to the remaining claims in her consolidated complaints, the AJ found the Agency did
not discriminate against Complainant on the bases of race (Asian), color (brown), national origin
(Vietnamese), sex (female), disability (PTSD/anxiety), or in reprisal for protected EEO activity
for any allegation in complaint one, complaint two, or complaint three.

The Agency issued a final action on March 26, 2015. The Agency’s decision fully implemented
the AJ’s decision.

On appeal, Complainant claims the AJ erred when he dismissed her claims from BLM-11-0165
regarding Vacancy Announcements BLM-AK-10-347267, Fire Coordinator Officer and BLM-
AK-10-365322, Geographic Information Specialist. Complainant states selections for these two
positions occurred in June 2010 and July 2010. Complainant argues the AJ erred in dismissing
these two claims because he failed to give her notice that he was considering dismissing the
claims.

Complainant also states she timely contacted an EEO Officer (Person A) at the Ft. Wainwright,
Alaska, BLM Office in July 2010. Complainant states she told Person A that she had been
treated unfairly regarding the nonselections and that he informed her he would investigate and
try to meet with Manager 1, the Alaska Fire Service (AFS) Manager, regarding her complaints.
Complainant states that Person A informed her that Manager 1 stated that she had “sour grapes”
and that he would not get involved in her situation. Complainant explains that Person A then
told her that he would approach Manager 2, Associate Manager of the AFS, regarding a
resolution of her complaint about the two nonselections. Complainant states she assumed Person
A was investigating or trying to resolve her complaints regarding the two nonselections.
Complainant also states there were no posters in her workplace regarding the EEO process.
Complainant notes that Person A never got back to her about the two nonselections until she
asked him about the status of her complaints in December 2010. Complainant claims that during
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December 2010, she met with Manager 2, and he refused to do anything about the two
nonselections. Complainant states at this point Person A gave her an EEO contact form dated
December 8, 2010, stating she had 45 days to contact the EEO Office to seek informal
counseling for the two nonselections. Complainant states she contacted the EEO Office to
commence informal counselling on January 24, 2011, and cites the January 25, 2011 EEO
contact form which shows an initial contact date of January 24, 2011.

Complainant also claims the AJ erred by failing to decide and dismissing her overbroad medical
inquiry claim and her unauthorized disclosure of medical records claim, without notice.

In response to Complainant’s appeal, the Agency explains that as a result of the three complaints
filed and subsequent amendments, the number of claims in this consolidated case totaled 30
claims. The Agency notes Complainant claims the AJ improperly dismissed her claims
regarding the nonselections for the Fire Coordinator Officer and Geographic Information
Specialist positions. The Agency states that Complainant does not raise any arguments on
appeal as to the other 28 claims the AJ decided in favor of the Agency.

Regarding the AJ’s dismissal of the two nonselection claims for untimely EEO Counselor
contact, the Agency states it cannot find any record of a notice of the AJ’s intent to dismiss the
claims based on untimely contact with an EEO Counselor. The Agency also notes that its’
Cross-motion for Summary Judgment also did not address the timeliness of Complainant’s
contact with an EEO Counselor. Thus, the Agency contends that as to these two claims, it
appears that the AJ did not properly follow the regulations in dismissing those claims.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R.§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

At the outset, we note that Complainant only challenges the Agency’s dismissal of four claims:
the dismissal of two nonselections regarding Vacancy Announcements BLM-AK-10-347267,
Fire Coordinator Officer and BLM-AK-10-365322, Geographic Information Specialist for
untimely EEO Counselor contact; a dismissal of her overbroad medical request claim; and a
dismissal of her claim for the unauthorized disclosure of medical records. The Commission has
the discretion to review only those issues specifically raised in an appeal. Accordingly, we will
not address the remaining claims. Moreover, we note that on appeal Complainant does not
challenge the Agency’s definition of her complaint.
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We must 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. Dep’t of Def.,
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 AJ could order discovery, if necessary, after receiving an opposition to a
motion for a decision without a hearing).

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. Dep’t of
Justice, EEOC Request No. 05940339 (February 24, 1995).

After a careful review of the record, we find that the AJ erred when he dismissed Complainant’s
nonselections claims regarding Vacancy Announcements BLM-AK-10-347267, Fire Coordinator
Officer and BLM-AK-10-365322, Geographic Information Specialist for untimely EEO
Counselor contact. Complainant contends that there were no posters on display at her work
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location informing anyone of the EEO process or the timeframe for initiating EEO contact.
Moreover, Complainant contends that she timely contacted an EEO Counselor with regard to
these two nonselections when she contacted Person A in July 2010. We note that on appeal, the
Agency does not contest Complainant’s claim that there were no posters on display in her work
location informing of the process or timeframe for initiating an EEO complaint. The Agency has
failed to show that Complainant knew or should have known of the 45-day time limit for
contacting an EEO Counselor. Further, we note that the Agency does not contest Complainant’s
contention that she timely contacted an EEO Counselor in July 2010, regarding the two
nonselections at issue. Upon review, we find the AJ improperly dismissed these two
nonselection claims.

Next, we address Complainant’s claim that the AJ improperly dismissed her claim that the
Agency engaged in overbroad medical requests. Upon review, we find the AJ did not dismiss
this claim as argued on appeal by Complainant. Rather, the AJ’s decision notes that
Complainant moved for partial summary judgment on her overbroad medical inquiry claim and
that the Agency filed an opposition to this motion. In his decision, the AJ determined that the
Agency’s requests for more specific medical documentation were not an overbroad medical
inquiry and were within the criteria set out by the Americans with Disability Act and EEOC
guidance.

The Commission notes that employers may make disability-related inquiries and may require a
medical examination if job-related and consistent with business necessity. 29 C.F.R.
§1630.14(c). “Job-related and consistent with business necessity” is when the employer has a
reasonable belief, based on objective evidence, (1) that an employee's ability to perform essential
job functions will be impaired by a medical condition, or (2) that an employee will pose a direct
threat due to a medical condition. This standard also includes inquiries/examinations pursuant to
requests for reasonable accommodation when disability or need for accommodation is not known
or obvious. EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000) at 15.

The record reveals that Complainant’s supervisor requested medical information from
Complainant to justify a sick-leave request for longer than three days as the information
Complainant previously submitted was insufficient. Thereafter, Complainant requested a
reasonable accommodation and the Agency asked for additional medical information to
determine whether Complainant met the definition of an individual with a disability, what
accommodation was needed for her limitations, and whether she could perform her fire dispatch
duties for the just-starting fire season. We find the supervisor’s requests for documentation were
job-related and consistent with business necessity. The Commission has stated that the employer
is entitled to know that an employee has a covered disability that requires a reasonable
accommodation. Thus, when the disability or the need for the accommodation is not known or
obvious, it is job-related and consistent with business necessity for an employer to ask an
employee for reasonable documentation about his/her disability and its functional limitations that
require reasonable accommodation. Enforcement Guidance - Disability-Related Inquiries, at.
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question 7. Thus, we determine that the supervisor’s requests were not a violation of the
Rehabilitation Act.

Finally, we note that Complainant contends that the AJ erred in dismissing her claim of
unauthorized disclosure of medical records. The Agency does not address this contention on
appeal. We note that as part of her formal complaints, Complainant alleged that the Agency
released her confidential medical information. This allegation was accepted and investigated by
the Agency. Moreover, we note that in a February 24, 2012 motion to consolidate her
complaints, Complainant again raised the issue that management officials had disclosed her
confidential sensitive medical information. The record does not reveal that this issue was
dismissed or decided by the AJ. Additionally, we note that in its brief on appeal, the Agency
listed the improper disclosure of Complainant’s medical information as part of Complainant’s
complaint. As there is no indication that this claim was dismissed by the AJ or addressed in the
AJ’s decision on the merits, we remand this matter so the AJ can properly address this claim.

In summary, we find the AJ improperly dismissed Complainant’s nonselection claims regarding
Vacancy Announcements BLM-AK-10-347267, Fire Coordinator Officer and BLM-AK-10-
365322, Geographic Information Specialist for untimely EEO Counselor contact and the AJ
failed to address Complainant’s claim regarding the unauthorized disclosure of her confidential
medical information. Therefore, judgment as a matter of law for the Agency should not have
been granted as to these claims.

CONCLUSION

Accordingly, the Agency’s final action finding no discrimination on the claim that the Agency
engaged in overbroad medical requests is AFFIRMED. The Agency’s final action regarding the
nonselection claims under Vacancy Announcements BLM-AK-10-347267, Fire Coordinator
Officer and BLM-AK-10-365322, Geographic Information Specialist and the claim that the
Agency improperly disclosed confidential medical information is VACATED and those claims
are REMANDED for further processing in accordance with this decision and the Order herein.

ORDER

The Agency shall submit to the Hearings Unit of the EEOC’s Seattle Field Office the request for
a hearing and a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date
this decision is issued. The Agency shall provide written notification to the Compliance Officer
at the address set forth herein that the request for a hearing and 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.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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) (1994 & Supp. IV 1999). 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 (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)
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.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
December 08, 2017
Date