Celinda L.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120143166 (E.E.O.C. Sep. 8, 2016)

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

Celinda L.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120143166

Agency No. DLAN140006

DECISION

Complainant filed an appeal from the Agency’s September 5, 2014, final decision 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 and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for
de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as an Administrative Assistant at the Agency’s Installation Support
facility in New Cumberland, Pennsylvania. On February 14, 2014, she filed an EEO
complaint in which she alleged that her immediate supervisor, the Family Housing Manager
(S1) improperly disclosed confidential medical information pertaining to her medical condition
on September 9, 2013. She also alleged that S1 had discriminated against her and had
subjected her to a hostile work environment on the bases of race (African-American) and
disability (stress and anxiety) by denying her the opportunity to do meaningful work since

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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October 15, 2013. Finally, Complainant alleged that S1 gave her only one hour of official
time to work on her complaint when she asked for two hours.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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, (hereinafter referred to as EEO MD 110) 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”).

We initially address Complainant’s claim regarding breach of confidential medical information.
The Rehabilitation Act prohibits the disclosure of an employee’s medical information except in
certain limited situations to the following personnel: supervisors and managers regarding
reasonable accommodations; first aid and safety personnel; government officials investigating
statutory and regulatory compliance; workers compensation offices or insurance carriers; and
officials responsible for maintaining records and reporting on the processing of reasonable
accommodation requests. Policy Guidance on Executive Order 13164: Establishing Procedures
to Facilitate the Provision Of Reasonable Accommodation, Question 20 (Oct. 20, 2000).
Disclosure of confidential medical information in a manner that does not conform to one of
these five exceptions constitutes a per se violation of the Rehabilitation Act. Scott v. United
States Postal Service, EEOC Appeal No. 0120103590 (September 19, 2012), request for
reconsideration denied EEOC Request No. 052013008 (April 16, 2013).

Complainant averred that on September 10, 2013, she was with her Union Representative
while he was on the telephone with S1 regarding a letter of reprimand that S1 had issued to her
the day before. According to Complainant, when the Union Representative asked S1 to
rescind the reprimand, S1 replied, “[Complainant] has post-traumatic stress disorder (PTSD);
she has a lot of problems.” IR 190. S1 denied that she ever mentioned during the
conversation with the Union Representative that Complainant had PTSD. IR 225-26. The
Union Representative averred that he did not recall S1 stating that Complainant had PTSD. IR
252. Complainant has not presented any sworn statements from other witnesses or documents
that contradict S1’s denial or which call into question her veracity or that of the Union
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Representative. We therefore find, as did the Agency, that Complainant failed to establish that
her confidential medical information was disclosed to unauthorized persons in violation of the
Rehabilitation Act.

We turn now to Complainant’s claim of discrimination and discriminatory harassment. In
order to prevail on those claims, Complainant would have to prove, by a preponderance of the
evidence, that either S1 or S2 was motivated by unlawful considerations of her race or
disability in connection with the incidents described in her complaint. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993). If Complainant fails to establish the existence of discriminatory
intent on the part of any of the responding management officials, no further inquiry would be
necessary as to whether the incidents complained of are severe or pervasive to rise to the level
of harassment or constitute separate acts of discrimination under disparate treatment theory.
Nicki D. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120133247 (Oct. 15, 2015).

Complainant averred that when she would ask S1 for work assignments, S1 punished her by
not giving her any. IR 201. When asked to elaborate as to how she was being punished, she
replied that she was not being given the opportunity to contribute or utilize her skill sets, and
that S1 had been treating her like a child, which she found demeaning. IR 201-02. In support
of her claim, she presented an email from the Relocations Assistant Program (RAP) Manager
who stated therein that she had observed S1 yelling at Complainant, singling her out for hostile
treatment, and denying her privileges granted to other employees. IR 214, 216, 219. The
RAP Manager noted, however, that S1, “still continues to bellow at [one of the employees to
whom she allegedly extended privileges].” IR 214.

S1 characterized the situation between her and Complainant much differently. She denied that
Complainant had ever come to her asking for work and averred that Complainant had wanted
to do everyone’s job but her own. IR 226-28. S1’s immediate superior, the Family Support
Services Administrator, averred that Complainant frequently failed to finish her assignments
because she did not like the work that she was being given, and relayed one incident in which
Complainant made negative comments about her merely because she had asked Complainant to
shred some documents. IR 236. The employee who Complainant alleged was granted
privileges by S1 averred that she had never heard Complainant ask for work, that she had
heard Complainant yell at S1 and “get smart with” S1, that Complainant had failed to complete
an inventory task assigned to her, and that on August 6, 2013, she had observed Complainant
interrupt a meeting that S1 was having with another employee and address S1 in a “rude and
disrespectful manner.” IR 260, 265-66. The Marketing Manager averred that Complainant
had failed to properly utilize a form that he had given her, that Complainant created flyers for
personal use despite being told not to, and that he had witnessed her choosing the work she
wanted to do, and that he also witnessed Complainant interrupting the meeting being held by
S1 on August 6, 2013. IR 276-77. The Union Representative averred that he did not
remember Complainant mentioning that she was being punished by not being given any work.
IR 253.Complainant has not submitted any sworn statements or documents tending to show that
S1’s treatment of her arose out of motivations related to her race or disability.
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Finally, we address Complainant’s claim that S1 denied her request for an additional hour of
official time beyond what S1 had granted her. As an employee, Complainant is entitled to a
reasonable amount of official time, if otherwise on duty, to prepare the complaint and to
respond to requests for information. 29 C.F.R. § 1614.605(b). “Reasonable” is defined as
whatever is appropriate, under the particular circumstances of the complaint, in order to allow
a complete presentation of the relevant information associated with the complaint and to
respond to agency requests for information. EEO MD 110, at Chap.6, § VII.C(1). Denial of
official time states a separately processable claim alleging violation of the Commission’s
regulations, without requiring a determination of whether the action was motivated by
discrimination. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120112298 (Mar.
11, 2014).

Complainant averred that in March 2014, she requested two hours of official time to work on
her complaint, but that S1 only allowed her to have one hour. IR 198, 203-05. In an email
from S1 to Complainant and her union representative dated March 14, 2014, with the subject
line that reads, “Re-EEO Stuff,” S1 stated that she had given one hour and thirty minutes for
Complainant’s meeting, of which one hour would be allotted for the meeting itself and thirty
minutes would be allotted for travel time. She also stated that Complainant could request an
additional day if more time was needed, that she did not tell Complainant to take leave, and
that she would be happy to grant Complainant an hour of administrative leave. IR 153-54,
228. The balance of the evidence indicates that S1 granted Complainant one hour and thirty
minutes of official time and was prepared to give Complainant additional time if she needed it.
As with the other incidents comprising her claim, Complainant has not submitted any evidence
that contradicts the explanation provided by S1 on the question of official time or that causes us
to question S1’s truthfulness.

Ultimately, we agree with the Agency that Complainant has not sustained her burden of
establishing the existence of an unlawful motivation on the part of S1 or of a violation of the
Commission’s regulations.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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), 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. The requests 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 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 (S0610)

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 (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
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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

September 8, 2016
Date