0120093060
01-13-2010
Cynthia L. Trisch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia L. Trisch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093060
Agency No. 4H-320-0031-06
DECISION
On July 14, 2009, complainant filed an appeal from the May 9, 2009
final agency decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
During the relevant period, complainant worked as the Postmaster at the
agency's post office in Branford, Florida. Complainant filed a formal EEO
complaint alleging that the agency discriminated against her on the basis
of disability (stress) when management disclosed her confidential medical
information unnecessarily and, after she returned from extended sick leave
in February 2005, subjected her to hostile work environment harassment.
Following an investigation of complainant's claims and her request for a
final agency decision, the agency issued a decision dated July 20, 2006.
In its July 2006 final decision, the agency found that complainant failed
to establish discrimination as alleged. Subsequently, complainant
filed an appeal with this Commission, which was docketed as Trisch
v. U.S. Postal Service, EEOC Appeal No. 0120064917 (February 12, 2009).
In EEOC Appeal No. 0120064917, the Commission affirmed the agency's
finding of no discriminatory hostile work environment, but remanded the
issue of breach of medical confidentiality to the agency for supplemental
investigation and subsequent decision.
Briefly, the supplemental investigation indicated that complainant alleged
that in December 2004 she submitted a medical report to her the Senior
Manager of Postal Operations (S1), who kept it in a filing cabinet in his
office rather than forwarding it to the medical unit. Later, she asserted
that S1 gave access to the medical report to the manager who took over as
Acting Manager of Postal Operations (S2). Complainant also alleged that
when her union representative attempted to discuss a matter regarding
complainant with S2, S2 informed the representative that complainant was
on leave "due to stress." Complainant requested compensatory damages.
In response to complainant's allegations, S1 stated that he could
not recall if he ever was aware of complainant's medical condition or
received medical documentation from her. He stated that 118 Postmasters
reported to him so it was unlikely that he knew why any one of them was
on sick leave. S2 stated that complainant informed him that she opposed
the placement of her name on a postmaster rankings list for the time
she was out on an extended leave. He said he asked S1 about the matter
and learned that complainant had been out on sick leave for a period
of several months shortly before he took over as the Acting Manager
of Postal Operations. S2 stated that as Acting Manager he also became
aware of complainant's Office of Workers' Compensation Programs (OWCP)
claim citing job-related stress. S2 stated that he was not given any
specific information about complainant's medical condition, only that
she had filed an OWCP claim based on stress.
With regard to the conversation with the union representative, S2
averred that the representative called him on complainant's behalf to
discuss complainant's concerns about having her extended absence taken
into account in the postmaster rankings report. He stated that during
the conversation, they discussed the fact that complainant had been
absent from work for several months in connection with a job-related
stress claim. S2 recalled that the union representative seemed familiar
with complainant's situation. S2 denied discussing any specific medical
information with the union representative.
The union representative stated that complainant contacted her regarding
a problem she was having with S2. According to the union representative,
complainant was concerned about a spreadsheet S2 had developed where
he ranked the Postmasters he supervised by various scores. Complainant
asked the union representative to speak with S2 about removing her name
because the rankings were unfair due to her extended absence from her
Postmaster position. The union representative stated that during the
course of the conversation, S2 stated that he knew complainant had been
out on stress-related leave. The union representative, however, said
that he did not elaborate on any specifics of complainant's medical
condition or state how he learned about it. The union representative
stated that she was not aware, prior to this conversation, that the
reason for complainant's absence from the office was stress.
In its subsequent decision, dated May 9, 2009, the agency found that
complainant's assertion was merely speculative; and that complainant
failed to show that S1 disclosed information to S2 unlawfully or that S2's
use of the term "job stress" to a person acting on complainant's behalf
violated 29 C.F.R. � 1630.14(c)(1). Accordingly, the agency concluded
that no violation of the law occurred. The instant appeal followed.
ANALYSIS AND FINDINGS
The Rehabilitation Act provides that information obtained regarding
the medical condition or history of any employee shall be treated as a
confidential medical record and there are only limited exceptions to this
regulation. 29 C.F.R. � 1630.14. By its terms, this requirement applies
to confidential medical information obtained from "any employee," and is
not limited to individuals with disabilities. Hampton v. United States
Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000). Although
not all medically-related information falls within this provision,
documentation or information of an individual's diagnosis or symptoms is
medical information that must be treated as confidential except in those
circumstances described in 29 C.F.R. Part 1630. See Hampton, supra;
see also EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities (March 25, 1997) at 17, �15.
Alleged Disclosure Between S1 and S2
After a thorough review of the record, the Commission determines that
the weight of the evidence does not support complainant's contention
that S1 provided S2 with access to the medical report submitted to him by
complainant. Rather, it appears that when S2 took over as complainant's
supervisor and complainant raised the issue of her extended absence with
him, he asked S1 about it and received verification that complainant had
been out of the office for several months on sick leave without further
elaboration as to the specifics of her medical condition. S2 later
learned, in his capacity as a manager, about complainant's workers'
compensation claim for job-related stress. Under these facts, we find no
violation of the confidentiality responsibilities of agency management.
See generally, 29 C.F.R. � 1630.14(c)(1).
Alleged Disclosure Between S2 and Union Representative
With regard to the second alleged disclosure, the weight of the evidence
of record established that complainant asked the union representative
to speak to S2 on her behalf concerning her extended absence from work
and how it should be viewed in his monthly Postmaster's ranking report.
During the course of this conversation, authorized by complainant,
it is undisputed that S2 stated that complainant's absence was due to
stress without revealing any further medical information. In this
context, we find credible S2's assertion that he believed that the
union representative was well aware of the reason for complainant's
absence. Under the facts of the instant case, where the union
representative had been authorized by complainant to speak with S2 about
her sick leave and no specific condition or diagnosis was revealed, we
find S2's comment was not a per se violation of the Rehabilitation Act.
Accordingly, the agency's final decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 13, 2010
__________________
Date
2
0120093060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093060