0120120413
02-11-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120413
Hearing No. 410-2010-00116X
Agency No. 4H310002209
DECISION
JURISDICTION
On October 24, 2011, Complainant filed an appeal from the Agency's September 23, 2011 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 Commission deems this appeal as timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Homeland Security Coordinator at the Agency's Atlanta Division, in Macon, Georgia. From June 2007 until December 2008, Complainant's first line supervisor was the Team Leader, and her second level supervisor was the Acting Inspector In Charge (AIC). From January to June 2009, Complainant was directly supervised by the AIC, and in June 2009, she was assigned to a new Team Leader (Team Leader 2)
On January 22, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on March 26, 2009, alleging that the Agency discriminated against and harassed her on the bases of race (Caucasian), sex (female), religion (Christian), disability (Major Depression), age (49), sexual orientation1 and reprisal for prior protected EEO activity when2:
1. in May of 2008, Complainant's request for an alternate schedule and potential alternate worksite to take care of private family matters was denied;
2. in August of 2008, the United States Postal Service Inspection Service management did not tell the United States Postal Service South Georgia District Managers that Complainant was hospitalized during a predicted hurricane and management did not properly have coverage for her during a predicted hurricane, and after an extended period of time she found that her work was not covered and she had a 2.5 month backlog, and her private medical information was shared;
3. in October 2008, rumors were spread about Complainant stalking and sexually harassing another employee and she became fearful of losing her job, her condition worsened, and she suffered a severe panic attack which delayed her return to work;
4. on October 29, 2008, while visiting her office, Complainant found that her office was packed up and would be relocated the week of November 3, 2008;
5. beginning October of 2008, Complainant was made aware that management never investigated allegations that she was a threat;
6. since November of 2008, Complainant had not been granted access to the District T Drive, which she required to complete her assignments; and
7. on December 10, 2008, Complainant was threatened by her Team Leader that actions would be taken against her as the Homeland Security Coordinator from the Atlanta Division of the Inspection Service if Complainant brought allegations of discrimination in the form of an EEO investigation.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination.
The AJ found the following material facts: in June or July 2007, Complainant was told to use her government credit card to make purchases, but later, the Team Leader told Complainant she was not authorized to use the credit card, and delayed her reimbursement for expenses. In July 2007, the Team Leader spoke to Complainant in public about wearing a men's t-shirt at work. In September 2007, Complainant was advised that she had to do all of her inspections in person, even if they were largely dispersed geographically. Complainant alleged that male African American inspectors were allowed to conduct their inspections by mail survey.
In May 2008, Complainant requested to work out of her parent's home for a short period because she needed to care for them following surgery. Complainant's request was denied, but she was permitted to work out of the District Office, which was not far from her parent's home. Complainant asserted that other similarly situated individuals were permitted to work at home due to illness, but she was not. Complainant requested a conflict resolution meeting with her Team Leader regarding these and other issues, but none was scheduled.
The AJ found that from August 17, 2008-November 6, 2008, Complainant was admitted to a psychiatric hospital due to depression and a resulting suicide attempt. Complainant alleged that the Inspection Service failed to notify the District Manager office of her hospitalization, which prevented preparations for an upcoming hurricane, and caused questions about her absence from work.
Complainant alleged that at this time, rumors began to circulate about Complainant; specifically, that she had been derelict in her duties, and was admitted to the hospital to avoid criminal charges. During her hospitalization, Complainant told the Acting Customer Services Manager (female)("Manager"), with whom Complainant allegedly had a relationship, the circumstances of her hospitalization. The AJ found that Complainant gave this Manager a "limited release" and Power of Attorney so that the Manager could inform the District Manager that she would be out of the office.
Complainant alleged that it was also at this time that management and other co-workers disclosed confidential medical information about the nature of her hospitalization to unauthorized individuals. Some of the co-workers who learned of Complainant's medical information learned about it from the Manager, and testified they were informed about it because they were Complainant's friends. Other individuals who learned of the information testified they learned of it from Complainant directly.
In October 2008, rumors that Complainant was stalking and sexually harassing the Manager also surfaced. The AJ found that management officials were aware of the rumors and testified they learned of these matters from Complainant herself, and other co-workers. Complainant complained about the stalking allegations and the rumors, and alleges that AIC did nothing about them, despite her requests that an investigation be conducted. The AIC testified that he informally looked into the matter, but determined there was not sufficient credible evidence to justify a formal investigation.
The AJ found that prior to August 2008, Complainant had been advised that her office would be moving to a nearby location due to consolidation of operations. When Complainant returned to work for a brief visit during her absence, she found the contents of her office boxed up, and was told she could not be in the facility by the Manager of Human Resources. She later learned that others saw her escorted from the building, which also contributed to rumors.
Complainant alleged that when she returned to work in November 2008, her office was relocated, and she did not receive adequate technical support from her supervisors. She states she did not have her file cabinets or computer equipment. Complainant alleged that when she asked the AIC why her office was moved, he informed her that it was because employees were afraid of her following her hospitalization. Complainant requested that she be assigned to a different supervisor, as recommended by her physician.
Also upon her return to work, Complainant found that she no longer had access to the server's "T-Drive." She claims this restricted access to necessary files, and prevented her ability to do her work. The AJ noted that the AIC testified there was a problem with the remapping of access to the T-Drive, and the problem was not limited to Complainant. Complainant was provided alternative access to the T-Drive.
Complainant alleged that while discussing her frustration over the T Drive with her Team Leader, she was advised not to discuss the matter further and not to pursue the matter on her own. Complainant then stated, "I don't think you can say that to me, for instance, if I choose to file an EEO on the district for their discriminatory behavior, which includes taking away my access, I can write whatever I want in an EEO, that is my right." Complainant alleges that the Team Leader reiterated her warning, so Complainant went to get a witness, an Administrative Support Specialist ("Specialist"). When they returned, the Team Leader would not comment on the issue.
The AJ found Complainant failed to establish a prima facie case of discrimination and that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found no dispute that the Agency denied Complainant's work at home request because it was reasonably concerned about Complainant's ability to care for her parents and get her work done. The AJ also found that Complainant was not aggrieved when the Inspection Service failed to alert the District Manager as to her absence so they could provide coverage. The AJ found Complainant suffered no adverse change in her employment when rumors spread about her, and the AJ found no dispute that Complainant was responsible for the spread of the rumors. The AJ found no dispute that Complainant's office was relocated due to reorganization, and did not investigate rumors that Complainant was a threat to others because of a lack of credible evidence to support the allegations. The AJ found no dispute that Complainant's T-Drive was inaccessible for a period due to a "remapping" issue, and not discriminatory animus. The AJ also found no evidence that Complainant's Team Leader threatened Complainant about filing an EEO.
As for the disclosure of private medical information, the AJ found that Complainant raised this claim as a Privacy Act violation because the medical information was disclosed by a friend, not the Agency. Accordingly, the AJ found the EEOC lacked jurisdiction over Privacy Act claims.
Analyzing the claims as a claim of harassment, the AJ found no evidence that anyone other than Complainant spread rumors. The AJ also found that to the extent that Complainant alleged harassment because of her sexual orientation; the AJ found this was not a protected classification under Title VII.
The Agency's final action implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues through her attorney, that the AJ improperly issued a decision on summary judgment without first ruling on her: (1) Motion to Compel; (2) Complainant's Response to the Agency's Motion to Strike as Untimely Motion to Compel and Agency's Motion for Leave to File a Protective Order; (3) Complainant's Motion to stay Complainant's Response to Agency's Motion for Summary Judgment until Complainant's Motion to Compel is decided; and (4) Complainant's Response to Agency's Renewed Request for a Decision on its Unopposed Motion for Summary Judgment.
In response to Complainant's appeal, the Agency contends that Complainant failed to serve her brief on Agency's representative, and therefore, the Commission should disregard the brief. Furthermore, the Agency contends that the appeal has no merit. It asserts that Complainant's discovery requests were inappropriate and targeted an employee with whom Complainant claimed to have had a same sex adulterous relationship.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
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. 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 she concluded that there was no genuine issue of material fact in this case. We find material factual issues in dispute, as well as the absence of analysis with respect to Complainant's sexual orientation claims, and improper medical disclosure claim. Furthermore, Complainant's Motion to Compel is still outstanding. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003)(holding that an "AJ should not rule on Summary Judgment unless he or she ensures that the party opposing the ruling is given... (4) the chance to engage in discovery before responding, if necessary.")
In finding no discrimination, the AJ relied on the Agency's reasons for its actions, but failed to examine evidence which, if believed, could dispute the Agency's reasons for its actions. For example, Complainant alleged that her request to work at home was denied, and the Agency maintained that it did not have a formal work at home policy. However, Complainant and the Administrative Support Specialist listed several individuals, including the Team Leader, who were allegedly permitted to work at home, which would cast doubt on the Agency's reasons for denying Complainant's initial request. Furthermore, the Agency states that Complainant's office was relocated to another office due to operational needs, yet Complainant alleges that she was moved because the AIC told her others were afraid of her following her hospitalization. The AIC was not questioned about this allegation during the investigation.
The Administrative Support Specialist corroborated most of Complainant's testimony, but largely testified as to what she was told by Complainant. Although this evidence could be considered hearsay, the AJ may find this evidence admissible for some probative value. Moreover, the Administrative Support Specialist also testified that Complainant alerted management that rumors were being spread about her by others, but management did not respond.
Furthermore, we note that in her complaint, Complainant claimed that she was subjected to discrimination and harassment by her Team Leader and other co-workers and management officials based in part on their perception of her sexual orientation. Complainant brought complaints regarding the treatment she received by the Team Leader to the attention of management, such as the AIC, but they did not act on her complaints. The Commission has found that lesbian, gay, bisexual, and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Admin., EEOC Appeal No. 0120110008 (January 11, 2013); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011)). Complainant's claims could be interpreted as a claim that she was the victim of sex stereotyping. On remand, the AJ must consider Complainant's claim that she was subjected to discrimination and harassment based on sex stereotyping.
Also missing from the decision is any analysis concerning Complainant's claim that her medical information was improperly disclosed. The Americans with Disabilities Act of 1990 (ADA) requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14(b)(1). Such information includes any medical information voluntarily disclosed by an employee. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002 (July 27, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). This is true even if Complainant does not have a disability. Young v. U.S. Postal Serv., EEOC Appeal No. 0120112626 (Oct. 3, 2011).
In her decision, the AJ found that Complainant was the one responsible for informing others about her medical condition and hospitalization, directly fueling the rumors. However, we find that the record contains a dispute as to who was responsible for revealing the information. The Manager, who had allegedly been entrusted with this information by Complainant, denied telling others about Complainant's hospitalization. However, two other individuals specifically averred that the Manager told them about the hospitalization. (See ROI p. 530 and 525). Although the record is unclear as to the nature of the relationship between all of these individuals, it is of no consequence. The Manager should not have disclosed confidential medical information, absent one of the valid reasons in 29 C.F.R. � 1614.30 (listing medical examinations and inquiries specifically permitted).
There is also the issue of the AIC and Team Leader's credibility, and question as to whether they improperly disclosed the information. The AIC contradicted his own testimony with respect to whether he even had knowledge of Complainant's medical information (compare ROI p. 471 with ROI p. 457). Furthermore, the issue of the Agency's response, or lack of response to Complainant's concerns, should be examined at a hearing. When Complainant raised concerns to management that rumors were circulating, the Team Leader and AIC should have conducted an investigation into the matter, and put an end to the conduct. There is no record of any response to Complainant's concerns.
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, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995).
In summary, there are many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant, herself. Therefore, judgment as a matter of law for the Agency should not have been granted as to the Agency.
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, the Commission reverses the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Atlanta District Office within fifteen (15) calendar days of the date this decision becomes final. On remand, the AJ shall address the relevancy of the discovery requests in the Motion to Compel. 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 hold a hearing and 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
02/11/2015
__________________
Date
1 Complainant raised sexual orientation as a basis in her complaint, and alleged harassment generally as well, but the matter was not investigated by the agency. (See EEO Counselor's Report, Report of Investigation (ROI) at p. 106 and Formal Complaint, ROI at p. 67).
2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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01-2012-0413
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120413