Cynthia L. Trisch, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 12, 2009
0120064917_-_remand (E.E.O.C. Feb. 12, 2009)

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

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0120064917