0120064917_-_remand
02-12-2009
Cynthia L. Trisch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Cynthia L. Trisch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120064917
Agency No. 4H-320-0031-06
DECISION
On August 18, 2006, complainant filed an appeal from the agency's July
20, 2006 final decision concerning her 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. The appeal is deemed timely and is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS in part the agency's final
decision, and REMANDS in part a claim for a supplemental investigation.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Postmaster at the agency's Branford Post Office in Branford,
Florida. On March 15, 2006, complainant filed an EEO complaint alleging
that she was discriminated against on the basis of disability (mental).
The issue, as accepted on April 3, 2006, by the agency for investigation,
consisted of the following claim: was complainant discriminated against
when, after her return from extended sick leave in February 2005,
she was subjected to a hostile work environment as a result of her
manager's harassment and retaliation concerning, but not limited to,
numerous negative comments about her medical condition and use of leave,
and an unfavorable performance rating on November 29, 2005.
In the information provided with her formal complaint and in the
course of the investigation, complainant provided details of what she
claimed was the harassment to which she was subjected by her manager
(Management Official - MO). Among those incidents detailed were
the following examples of the alleged discriminatory behavior of MO.
Following her return from extended leave, she claimed that he made
negative statements to her and to her union representative about her
absence from the facility. In a report produced by MO which ranked all
postal facilities under his management, the name of each Postmaster was
listed next to their facility, which complainant claimed was unfair as
she had been on leave during part of the time period of the report and
was being held accountable for the substitute manager's performance.
Complainant also referenced her performance evaluation results, received
on November 29, 2005, where she received the rating of "Contributor,"
as not being fairly calculated due to her absence during part of the
ratings period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's June 12, 2006 request, the agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that complainant was not an
individual with a disability, as defined by the Rehabilitation Act, and
was not regarded as an individual with a disability. Assuming complainant
was protected by the Rehabilitation Act, and assuming she had been
subjected to an adverse action, the agency found, under a disparate
treatment analysis, that she had not established a prima facie case
of disability discrimination in that she had not shown that similarly
situated employees had been treated better than her. It noted that the
agency had provided legitimate, nondiscriminatory reasons for its actions
regarding the performance evaluation, namely that the performance of the
Postmaster is inextricably tied to the performance of their assigned Post
Office, and that her performance warranted the rating given. It noted
that complainant's self-rating matched what she received from MO, as he
concurred in her evaluation of herself. The agency found complainant
had not shown the agency's reasons to be pretext for discrimination.
Regarding her claim of retaliation, implied in the accepted issue and
referenced in her affidavit, the agency found that complainant had not
established a prima facie case of reprisal in that she had no previous
EEO activity and had not expressed opposition to discriminatory practices
within the agency. Under a harassment analysis, the agency found that
MO denied making any comments regarding her leave usage. The decision
concluded that complainant failed to prove that she was subjected to
discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her brief in support of her appeal, complainant notes that she is not
actually contesting the results of her performance evaluation, but rather
her focus is on the numerous negative comments MO has made about her leave
usage. She also argues that MO inappropriately disclosed her medical
information to a third party, in violation of the Rehabilitation Act.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
Complainant alleges that she was subjected to a hostile work environment
and harassment based on disability. To establish a prima facie case of
hostile environment harassment, a complainant must show that: (1) she
is a member of a statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994). Whether
the harassment is sufficiently severe to trigger a violation of the
Rehabilitation Act must be determined by looking at all the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
In other words, the incidents must have been "sufficiently severe and
pervasive to alter the conditions of complainant's employment and create
an abusive working environment." Id. at 21; see also Oncale v. Sundowner
Offshore Services, Inc., 23 U.S. 75 (1998).
In the instant case, we find that complainant fails to establish a
prima facie case of harassment based on disability. Assuming without
finding, for the purposes of analysis only, that complainant is an
individual with a disability, we find that the behavior of MO was not
sufficiently severe or pervasive such that it unreasonably interfered with
complainant's work performance or rose to the level of illegal harassment.
Having reviewed the record, we do not find that, taken as a whole, the
incidents complainant alleges are sufficiently severe or pervasive to
constitute harassment and a hostile work environment.
We do, however, note that complainant has consistently claimed during the
processing of this complaint and in her appeal, that MO inappropriately
revealed her medical information to a third party, without her permission,
in violation of the Rehabilitation Act. She has claimed that MO allegedly
revealed her medical information and diagnosis to her union representative
in the course of a conversation regarding the facility ranking report.
The Commission's regulations implementing the Rehabilitation Act also
provide for the confidentiality of medical records. Specifically, 29
C.F.R. � 1630.14(c)(1) provides, in pertinent part, that: "Information
obtained... regarding the medical condition or history of any employee
shall ... be treated as a confidential medical record, except that:
(i) [s]upervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodation." By its terms, this requirement applies to confidential
medical information obtained from "any employee," and is not limited
to individuals with disabilities. See 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 is without
question 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 ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations (October 10, 1995),
at 22; EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities (March 25, 1997) at question 15;
EEOC Enforcement Guidance: Disability Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act
(July 27, 2000) at p. 4.
A review of the record shows that the EEO Investigator declined to obtain
an affidavit from the union representative or to otherwise investigate
this claim. We find that the issue accepted for investigation was
worded broadly enough to encompass an allegation such as this, and
should have been part of the investigation. Complainant did enter into
evidence a letter submitted by her union representative detailing the
conversation she had with MO with respect to this claim. Complainant
further submitted, as part of her appeal brief, a copy of a letter
to her from her District Manager, dated September 11, 2006, in which
he addresses her allegation that MO discussed her medical information
with other postmasters. The District Manager stated that MO "assures
me that the only person he discussed your situation with was [the union
representative]." Additionally, although the EEO Investigator questioned
MO about the remarks made to the complainant about her use of sick leave,
which MO categorically denied, the EEO Investigator did not ask about
this aspect of MO's conversation with the union representative.
Therefore, we find it appropriate to remand for a supplemental
investigation the issue of the potential breach of confidentiality of
complainant's medical records and information.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
agency's finding that complainant was not subjected to discrimination
in the form of harassment; however, we REMAND the issue of the breach
of confidentiality of complainant's medical records in accordance with
the order below.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency is ordered to conduct a supplemental investigation with respect
to the issue of whether MO revealed complainant's medical information in
violation of the Rehabilitation Act. The agency shall obtain affidavits
from MO, complainant's union representative, and complainant, as well as
from any other person who may have information on the issue, and shall
obtain any other relevant documentary evidence. Thereafter, the agency
shall issue a new final agency decision, with appropriate appeal rights
to the Commission.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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, D.C. 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 (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 (T0408)
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.
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
February 12, 2009
Date
2
0120064917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
7
0120064917