Cora L. Hampton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionApr 13, 2000
01a00132 (E.E.O.C. Apr. 13, 2000)

01a00132

04-13-2000

Cora L. Hampton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Cora L. Hampton, )

Complainant, )

) Appeal No. 01A00132

v. ) Agency No. 1F-942-0028-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,

et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405). Complainant alleged

that she was discriminated against on the basis of mental disability

(stress) and/or physical disability (back injury) when: (1) her requests

for leave were denied; (2) on March 16, 1999, a supervisor placed her

PS3971 in the time card rack after complainant asked her not to; and (3)

on March 26, 1999, complainant was escorted out of the building for no

apparent reason.

The record reveals that during the relevant time, complainant was

employed as a mailhandler at the agency's Bulk Mail Center in Richmond,

California. Believing she was a victim of discrimination, complainant

sought EEO counseling and subsequently filed a formal complaint on May

18, 1999.

At the conclusion of the investigation, complainant was informed

of her right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to respond within the time period specified in

29 C.F.R. � 1614, the agency issued a final decision.

In its FAD, the agency concluded that complainant had failed to establish

a prima facie case of disability discrimination with respect to either

disparate treatment or denial of reasonable accommodation. Specifically,

the FAD concluded: (1) S1 had denied complainant's February 10,

1999 request for annual leave because she had falsely stated on the

leave request that S1 had harassed and threatened her; (2) the Acting

Supervisor (S2) had "made special efforts" to comply with complainant's

request that her PS3971 forms be removed from the time card rack; and

(3) complainant was escorted out of the building because she refused to

clock in and go to work.

On appeal, complainant has raised no contentions, but has submitted

various documents from the investigative file, as well as a "supplemental

report" from a medical doctor, dated June 29, 1999, regarding her

physical condition, and two letters from a psychiatrist dated April 6,

1999 and July 27, 1999, regarding disability leave occurring subsequent

to the events here at issue. The agency requests that we affirm its FAD.

Based on a careful review of the record, we find that the agency erred

in its legal analysis of complainant's claims under the Rehabilitation

Act.<2> We further find that the present record is insufficient to

permit adjudication of the merits of complainant's claims, and thus

remand for a supplemental investigation is necessary.

First, the FAD does not address whether or not complainant is a

"qualified individual with a disability" within the meaning of the

Rehabilitation Act. See 29 C.F.R. � 1630.2. In addition, the FAD

erroneously framed each of complainant's claims as limited solely

to her alleged mental disability, whereas complainant's affidavit

clearly asserts that she additionally alleges physical disability

(back injury) as a basis of discrimination relative to each claim.

Although "physical disability" is not marked as a basis on the formal

complaint form, it is raised in the EEO Counselor's report, throughout

complainant's investigative affidavit, and in the ROI (page 4) by the

agency's investigator. An individual with a disability is one who:

(1) has a physical or mental impairment that substantially limits one

or more major life activities;<3> (2) has a record of such impairment;

or (3) is regarded as having such an impairment. 29 C.F.R. �1630.2(g).

Major life activities include caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i). A "qualified" individual with a disability is one

who satisfies the requirements for the employment position she holds or

desires, and can perform the essential functions of that position with

or without reasonable accommodation. 29 C.F.R. � 1630.2(m). On remand,

in its supplemental investigation, the agency should determine whether

complainant had a physical or mental disability pursuant to the foregoing

standard during the relevant time period.

Second, the agency insufficiently investigated complainant's claim with

respect to leave time. Complainant's formal complaint clearly states that

she challenges S1's denial of two separate annual leave requests submitted

on February 10, 1999. S1's affidavit only proffers an explanation for

denying the first leave request; it does not mention the second one.

Complainant and S1 both testified that complainant submitted a request

for three hours annual leave which stated that she was "stressed from

harassment and threat from supervisor." S1 denied the request, noting

on the leave request for "remarks not true." Complainant then submitted

a second annual leave request, the same day, for two and one-half hours

annual leave, which stated only "stress" as the reason leave was sought.

S1 denied this request as well. Neither the Report of Investigation

(ROI) nor the FAD addressed whether S1's stated reason for denial of this

second annual leave request was discriminatory. On remand, the relevant

information should be obtained, and the claim analyzed accordingly.

Third, the FAD does not address complainant's claim that S1 improperly

denied her request for sick leave from on or about February 18, 1999

through March 16, 1999, thus requiring her to take unpaid leave instead.

This claim is clearly stated in the formal complaint, supporting facts

are addressed in complainant's affidavit, and the Record of Investigation

(ROI) contains two letters from a psychiatrist which complainant alleges

that she provided to S1.<4> Yet, the agency nonetheless failed to

address this claim in its investigative report or its FAD.<5> On remand,

any additional relevant information should be obtained, and the claim

analyzed accordingly.

Fourth, the agency erred in its analysis of complainant 's claim that

her medical information was improperly disclosed without authorization

when her Form PS 3971 was placed on the card rack, in accordance with the

facility's practice of placing folded copies of leave requests behind the

employee's time card. ADA regulations provide for the confidentiality

of medical records, in pertinent part as follows:

Information obtained... regarding the medical condition or history of

any employee shall ... be treated as a confidential medical record,

except that:

(I) supervisors and managers may be informed regarding necessary

restriction on the work or duties of the employee and necessary

accommodation.

29 C.F.R. � 1630.14(c); see also Valle v. United States Postal Service,

EEOC Request No. 05960585 (September 5, 1997), Short v. Department of

the Air Force, EEOC Appeal No. 01980456 (October 7, 1999). By its terms,

this requirement applies to confidential medical information obtained from

"any employee," and is not limited to individuals with disabilities.

See also EEOC Enforcement Guidance on the Americans With Disabilities

Act and Psychiatric Disabilities (March 25, 1997) at 17 �15; ADA

Enforcement Guidance: Preemployment Disability-Related Questions and

Medical Examinations" (October 10, 1995) ("Preemployment Guidance")

at 21. However, not all medically-related information falls within

this proscription.

A notation that an individual has taken sick leave or had a doctor's

appointment is not confidential medical information. Of course,

documentation of the individual's diagnosis or symptoms would be medical

information.

Preemployment Guidance at 22 n.26. If the agency disclosed medical

information pertaining to complainant in a manner that did not conform

with this regulation, then its act of dissemination would constitute a

per se violation of the Rehabilitation Act, and no showing of harm beyond

the violation would be necessary. See Valle, supra. However, again

the instant investigative record is insufficient to permit us to make

a determination. While complainant alleges that various of her leave

request forms were improperly kept on the time card rack, the record

contains no specific information regarding what confidential medical

information, if any, was contained on the forms at issue, and whether

anyone other than supervisory personnel had access thereto. On remand,

the relevant information should be obtained, in order to permit the

claim to be assessed in accordance with the foregoing standard.

Accordingly, after a careful review of the record, including arguments

and evidence not discussed in this decision, the Commission VACATES the

final agency decision and REMANDS this matter to the agency for further

processing in accordance with the following ORDER.<6>

ORDER

The agency is ORDERED to take the following action:

1. The agency is ORDERED to conduct a supplemental investigation to

ascertain: (a) whether complainant is a "qualified individual with a

disability" within the meaning of the Rehabilitation Act; (b) S1's reason,

if any, for denial of complainant's second leave request submitted on

February 10, 1999; (c) the facts regarding complainant's request for leave

during her absence from on or about February 18, 1999 through March 16,

1999, and what action(s), if any, were taken by management relative

thereto; (c) the contents of the Forms PS3971 which were displayed on

the card rack, the length of time during which they were displayed, and

the nature and extent of employee access to the forms during that time.

As part of its supplemental investigation, the agency should identify,

by date, which Forms PS3971 are at issue, and ensure that they are all

included in the investigative file.

2. Thereafter, the agency shall issue a final decision addressing all

outstanding issues raised in the foregoing decision. The supplemental

investigation and issuance of the final decision must be completed within

forty-five (45) calendar days of the date this decision becomes final.

A copy of the agency's new final decision must be sent to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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

(R1199)

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:

April 13, 2000

___________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

Date1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The 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. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

3 The Supreme Court has held that the determination of whether a person is

an "individual with a disability" must be based on his or her condition

at the time of the alleged discrimination, and therefore if the individual

uses a mitigating measure, such as medication or an assistive device,

the assessment of whether they are substantially limited in a major

life activity must be based on the limitations, if any, when using the

mitigating measure. Sutton v. United Airlines, Inc., 527 U.S. 471

(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).

4Complainant asserts in her affidavit: "My psychiatrist . . . took me

off work. I returned March 16, 1999. I called in February [and] spoke

with [S1] and asked for sick leave. [S1] did not grant the leave."

5The first letter from complainant's psychiatrist, requesting that

complainant be placed on "disability leave," is undated. Complainant

contends that she gave it to S1 on February 18, 1999. The second letter,

dated March 11, 1999, stated that complainant could return to work

on March 16, 1999. Complainant attested that she was on leave from

February 12, 1999 through March 16, 1999. The record also contains a

health insurance claim document reflecting coverage of psychiatric care

for complainant from February 9, 1999 through April 26, 1999.

6To avoid bifurcation of complainant's claims, we will remand his entire

complaint rather than accepting certain issues for appeal. See King

v. Department of the Navy, EEOC Request No. 05950973 (January 16, 1997).