Danny L. Price, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 22, 2008
0120070997 (E.E.O.C. May. 22, 2008)

0120070997

05-22-2008

Danny L. Price, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Danny L. Price,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070997

Agency No. 1J626001505

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 3, 2006 final 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.

Complainant alleged that the agency discriminated against him on

the basis of disability (heart disease and high blood pressure) and

harassment/hostile work environment when, on August 29, 2005, he was

harassed by management when he was confronted about his heart condition in

front of his coworkers, thereby constituting a breach of confidentiality

with regard to his medical condition.

Complainant, a full-time regular Laborer Custodian at the Champaign

Processing & Distribution Center, Champaign, Illinois, indicated that

while he was outside smoking a cigarette with a group of three coworkers,

his supervisor approached him and publicly scolded him for smoking while

having heart disease. The supervisor asked complainant if his doctor

knew that he smoked. Complainant had recently requested a reasonable

accommodation for his heart disease that prevented him from mowing the

lawn at the facility.1 Complainant stated that his coworkers were not

aware of his condition. Complainant maintained that the supervisor was

very forceful in his view about the dangers of smoking when complainant

had heart disease and continued to bring the issue up on several

occasions.

According to the record, complainant's supervisor indicated that he made

the statement about complainant smoking because he was concerned for

complainant's health. He also indicated that he told other management

about the incident because those officials were involved in deciding if

complainant's medical condition qualified for a workplace accommodation.

The supervisor was issued a Letter of Warning for violating complainant's

privacy and not treating him with respect.

Following an investigation, which complainant maintains was less than

adequate, complainant was informed of his right to request a hearing

before an EEOC Administrative Judge or alternatively, to receive a final

decision by the agency. Complainant requested a final agency decision

(FAD). In its FAD, the agency concluded that complainant failed to

show that he was discriminated against or subjected to a hostile work

environment.

Disclosure

The Americans with Disabilities Act2 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)(1); see Shaw v. Department of Transportation, EEOC

Appeal No. 01A30273, March 11, 2004; and Hampton v. United States Postal

Service, EEOC Appeal No. 01A00123 (April 13, 2000). By its terms, the

requirement applies to confidential medical information from any employee

and is not limited to individuals with disabilities. See Hampton, supra;

see also 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); ADA Enforcement Guidance: Preemployment Disability-Related

Questions and Medical Examinations (October 10, 1995).

If the agency discloses medical information pertaining to a complainant

in a manner that did not conform to this regulation, then its act of

dissemination would constitute a violation of the Rehabilitation Act.

We note that there is no requirement of a showing of harm beyond the

violation. Hampton, supra.

Under the circumstances in this case, where the supervisor discussed his

view about the dangers of complainant smoking due to his heart disease

in the presence of others, we find that the supervisor disclosed medical

information pertaining to complainant's condition. Indeed, the record

indicates, and the supervisor admits, that he discussed complainant's

medical condition in front of complainant's coworkers.3 The dissemination

of this information constitutes a violation of the Rehabilitation Act

since the medical condition or history of any employee must be treated

as a confidential medical record. Accordingly, we find that a violation

of the Rehabilitation Act has occurred.

Hostile Work Environment

It is well settled that harassment based on an individual's disability

is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57

(1986). In order to establish a claim of harassment under this basis,

complainant must show that: (1) he belongs to a statutorily protected

class; (2) he was subjected to unwelcome conduct related to his membership

in that class; (3) the harassment complained of was based on disability;

(4) the harassment had the purpose or effect of unreasonably interfering

with his work performance and/or creating an intimidating, hostile

or offensive work environment; and (5) there is a basis for imputing

liability to the employer. McCleod v. Social Security Administration,

EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of

Dundee, 682 F.2d 987, 903 (11th Cir. 1982). The harasser's conduct

should be evaluated from the objective viewpoint of a reasonable person

in the victim's circumstances. See Enforcement Guidance on Harris

v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Complainant asserts that the complained of incidents occurred due to his

disability. For purposes of analysis only, we assume complainant is an

individual with a disability under the Rehabilitation Act. In viewing

the events as a whole, we find that complainant has not established that

the incidents had the purpose or effect of unreasonably interfering

with his work performance and/or creating a hostile work environment.

Therefore, we conclude that complainant failed to establish his claim

of harassment based on disability.

Finally, with respect to complainant's contention that he was not

offered reasonable accommodation,4 we find that there is no evidence in

the record that complainant was ever required to work outside of his

medical restrictions. In fact, the record shows that complainant was

indeed given a workplace accommodation.

CONCLUSION

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the finding that complainant

failed to demonstrate a hostile work environment. However, we reverse

the agency's final order regarding the medical disclosure and find that

the agency violated the Rehabilitation Act.

ORDER

The agency is ordered to take the following remedial action:

1. Within ninety (90) calendar days of the date this decision becomes

final, the agency shall provide EEO training to the supervisor in question

focusing on the agency's obligation under the Rehabilitation Act to keep

medical information confidential.

2. The agency shall consider taking disciplinary action against the

supervisor responsible for violating the Rehabilitation Act. The agency

shall report its decision to the Commission. If the agency decides to

take disciplinary action, it shall identify the action taken. If the

agency decides not to take disciplinary action, it shall set forth the

reason(s) for its decision not to impose discipline.

3. Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall give complainant a notice of his right to submit

objective evidence (pursuant to the guidance given in Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)), in support

of his claim for compensatory damages within forty-five (45) calendar

days of the date complainant receives the agency's notice. The agency

shall complete the investigation on the claim for compensatory damages

within forty-five (45) calendar days of the date the agency receives

complainant's claim for compensatory damages. Thereafter, the agency

shall process the claim in accordance with 29 C.F.R. � 1614.110.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Champaign Processing & Distribution

Center, Champaign, Illinois facility copies of the attached notice.

Copies of the notice, after being signed by the agency's duly authorized

representative, shall be posted by the agency within thirty (30) calendar

days of the date this decision becomes final, and shall remain posted

for sixty (60) consecutive days, in conspicuous places, including all

places where notices to employees are customarily posted. The agency

shall take reasonable steps to ensure that said notices are not altered,

defaced, or covered by any other material. The original signed notice

is to be submitted to the Compliance Officer at the address cited in

the paragraph entitled "Implementation of the Commission's Decision,"

within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 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 (M0408)

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 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 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 (R0408)

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 (Z0408)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

______05-22-08___________

Date

1 Complainant's medical documentation indicated that he should not work

in the hot sun and that he was unable to work prolonged periods of time

and could not push a lawn mower.

2 The 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.

3 The supervisor believed that the coworkers were aware of complainant's

condition.

4 We note that the claim of the agency's alleged failure to provide

complainant with a reasonable accommodation was not identified as a claim

by the agency in its FAD. Nonetheless, the agency analyzed the substance

of this claim, and we affirm its finding of no discrimination.

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0120070997

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070997