Davida L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182679 (E.E.O.C. Dec. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Davida L.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182679

Hearing No. 430-2017-00409X

Agency No. DON-16-32205-02882

DECISION

On August 21, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 27, 2018, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Analyst at the Agency’s Military Sealift Command in Norfolk, Virginia.
Complainant submitted a request for a reasonable accommodation and on August 13, 2015, the
Agency granted her request that the managers and supervisors within her chain of command
understand her medical condition; and approval to take breaks to “self-soothe” and regain
composure when she experiences a panic attack. Report of Investigation (ROI) at 91,544.

On February 22, 2016, Complainant started in the budget execution division. Complainant was
placed on the husbanding team; however, her first line supervisor (S1) (no disability) was removed

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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from the team from March through September 2016. ROI at 442. A Supervisory Financial Analyst
(SFA) (no disability) became the new supervisor of the husbanding team but S1 remained
Complainant’s first line supervisor. ROI at 289,447.

Complainant stated that on March 7, 2016, she met with S1 and sent her a copy of her reasonable
accommodation form. On June 9, 2016, Complainant met with her second line supervisor (S2) (no
disability), who stated that Complainant’s productivity had decreased. Complainant stated that
following the meeting, she sent S2 a copy of her reasonable accommodation to help S2 understand
what happened with Complainant’s productivity. ROI at 308. On or about June 21, 2016, S2 met
with Complainant, S1, SFA, and a Team Lead (TL) (no disability) to discuss Complainant’s
reasonable accommodation. Complainant stated that S2 violated her Health Insurance Portability
and Accountability Act (HIPAA) rights at the meeting when S2 shared Complainant’s medical
information. ROI at 297-8. Complainant stated that after the meeting, S2, SFA, and TL all treated
her differently. For example, SFA stated that Complainant needed to pay attention and take notes
during a meeting and send her an email detailing everything they discussed at the meeting.
Complainant also stated that TL backed up against the wall and threw her hands up in the air as
Complainant passed by. ROI at 304-6,311.

On or about August 2, 2016, Complainant met with the Comptroller to share her concerns.
Complainant stated that for approximately one week, she stopped receiving emails with
assignments, and she then started to receive her assignments through S1. Complainant also stated
that S1 informed her that if she had any questions, she should ask S1, and not contact TL or SFA.
ROI at 320,322,324,327.

On August 31, 2016, S1 was out of the office, and Complainant went to S2 to request telework for
the remainder of the day because she had to go home to meet a plumber; S2 denied her request.
ROI at 333-4. Later that afternoon, Complainant attended an appointment with her doctor, who
stated that Complainant needed to take time off for treatment and to decompress. Complainant
texted her doctor’s note to S1, which also stated that Complainant should be excused from work
September 1-7, 2016. Complainant stated that S1 called her to question why Complainant could
not come to work; threatened to remove Complainant from her team; and stated that she needed
someone who was going to be able to work. ROI at 341,204,340.

On September 7, 2016, Complainant stated that she was instructed to submit a daily log to track
her work, and to copy TL and SFA on everything she sent out. ROI at 312,347.

On November 2, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her, and subjected her to a hostile work environment, on the basis of
disability (major depressive disorder, anxiety, and migraines) when:

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1. on March 7, 2016, after Complainant told S1 in confidence about her medical
diagnosis, S1 violated Complainant’s HIPAA rights by sharing the information
with S2, SFA and TL;2

2. on March 7, 2016, S2, SFA and TL became aware of Complainant’s medical
diagnosis and began to treat her differently than her coworkers by avoiding making
contact with her, throwing their hands up when she walked by, and instructing her
to write down everything she is told concerning her daily duties;3

3. on July 20, 2016, TL and SFA stopped sending work assignments directly to
Complainant, and started sending them to S1 for action, after Complainant met with
the Comptroller;

4. on August 31, 2016, S2 denied Complainant the opportunity to telework;

5. on September 1, 2016, after Complainant notified S1 of her doctor’s note, S1 called
Complainant at home and she questioned why Complainant would not be able to
come into work; threatened to remove Complainant from “N8,” stating that she
needed someone who was able to work and get the job done; and told Complainant
that what was going on was “crazy”; and

6. on September 7, 2016, Complainant was directed by SFA to start tracking her work
in a daily log, and to include S1, S2, and TL, so that they could review any emails
Complainant sent, even though no other coworker had been given the same
instructions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. On May 8, 2018, the AJ remanded the complaint to the Agency,
which issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

As an initial matter, the Agency dismissed claim 1 for failure to state a claim. The Agency noted
that matters concerning HIPAA are not within the regulations enforced by the Commission.
However, the Agency stated that claim 1 would be analyzed to determine if management officials
subjected Complainant to unlawful action under EEOC regulations by disclosing her confidential
medical information. The Agency found that S2 did not disclose Complainant’s confidential
medical information because the evidence does not show that she mentioned Complainant’s
diagnosis, symptoms, or the specific nature of her impairment, during the meeting.

2 Complainant stated that S1 did not share her medical information, but that S2 did so in June 2016.
ROI at 297-8.

3 Complainant corrected that these events occurred in June 2016. ROI at 308.
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The Agency found that Complainant was an individual with a disability, and it assumed for the
purposes of the discussion, that she was a qualified individual with a disability. The Agency found
that Complainant did not establish a prima facie case of disability discrimination for claims 2 and
5, because they were not adverse employment actions. However, the Agency assumed that
Complainant established a prima facie case of disability discrimination, and that management
officials articulated explanations for their actions for claims 4 and 6.

For claim 4, S2 explained that Complainant’s telework request was denied because she did not
have a telework agreement, or telework training on file, at the time the request was made. S2 also
stated that employees needed to be employed by “N8” for at least six (6) months to be eligible for
telework and that she did not believe that the six-month period had passed. For claim 6, SFA stated
that she asked Complainant and TL to submit a daily log so that SFA could get a good grasp of the
workflow. SFA added that this work requirement was imposed because the team and the work was
new. The Agency then determined that Complainant had not established pretext for discrimination.

Regarding Complainant’s harassment claim, the Agency found that Complainant had not
established that the complained of conduct was unlawfully motivated, or that it was sufficiently
severe or pervasive to create a hostile work environment or unreasonably interfere with her work
performance. The Agency concluded that Complainant was not discriminated against based on her
disability.

CONTENTIONS ON APPEAL

Complainant’s contentions

Complainant, through her attorney, argues that the Agency improperly dismissed claim 1 because
the Agency’s disclosure of Complainant’s HIPAA information was a violation of the
Rehabilitation Act. Complainant requests that the Commission reverse the Agency’s final decision
and find that Complainant was subjected to discrimination. Complainant does not request a
hearing on appeal.

Agency’s contentions

The Agency requests that the Commission dismiss the appeal as untimely. Specifically, the Agency
notes that it issued its final decision on June 27, 2018, and that Complainant did not file her appeal
until August 21, 2018. The Agency notes that Complainant’s designated representative (non-
attorney) received a copy of the final decision on June 29, 2018, and that there was no record
regarding Complainant’s attorney because they did not update the EEO office. Further, the Agency
argues that Complainant’s attorney had constructive notice of the final decision through
Complainant’s non-attorney representative, and that Complainant herself could have ensured that
her attorney was notified of the final decision and provided a copy.

The Agency argues, arguendo, that if Complainant’s appeal is deemed timely, it is entitled to a
decision affirming its final decision.
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ANALYSIS AND FINDINGS

Standard of Review

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9,
§ VI.A. (Aug. 5, 2015) (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”).

Timeliness of Appeal

The Agency argues that Complainant’s appeal is untimely because it issued its final decision on
June 27, 2018, and she did not file the appeal until August 21, 2018. Appeals to the Commission
must be filed within thirty (30) calendar days after Complainant receives notice of the Agency's
final action. 29 C.F.R. § 1614.402(a). When a complainant’s representative is an attorney, the time
within which to appeal shall be calculated from the receipt of the required document by the
complainant’s representative. 29 C.F.R. § 1614.402(b).

A review of the record shows that on April 23, 2018, Complainant’s attorney notified the AJ, and
Agency counsel, of her entry of appearance. When the AJ issued her order dismissing
Complainant’s hearing request, she included Complainant’s attorney on the certificate of service;
however, when the Agency issued the final decision, it did not serve Complainant’s attorney and
only sent a copy of the final decision to Complainant and her non-attorney representative, who
received it on June 29, 2018.

Complainant’s non-attorney representative emailed Complainant’s attorney on July 13, 2018,
asking if she received a copy of the final decision; Complainant’s attorney stated that she had not,
and she requested a copy from the Agency counsel. On July 17, 2018, the Agency counsel
informed Complainant’s attorney that his office does not issue final agency decisions and provided
the name of an appropriate contact. Complainant’s attorney emailed the contact on July 17, and
August 2, 2015, requesting a copy of the final decision. The Agency counsel emailed a copy of the
final decision to Complainant’s attorney on August 7, 2018.

In this case, we find that the Agency had sufficient notice that Complainant was represented by
her attorney, and that it failed to serve Complainant’s attorney with a copy of the final decision
until August 7, 2018. Complainant filed her appeal on August 21, 2018, which was within the 30-
day deadline, and as such, we find that Complainant’s appeal is timely.

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Dismissed Claim

On appeal, Complainant argues that the Agency improperly dismissed her claim regarding her
allegation that the Agency violated her HIPAA rights when her managers disclosed her medical
information. We note that the Commission has previously determined that matters concerning
HIPAA and the Privacy Act are not within the regulations enforced by the Commission. See Grove
v. U.S. Postal Service, EEOC Appeal No. 0120110456 (Jan. 5, 2012); Price v. U.S. Postal Service,
EEOC Appeal No. 0120111033 (Dec. 8, 2011). The EEO process is the improper forum to raise
such violations, and accordingly, we AFFIRM the Agency’s dismissal of Complainant’s allegation
of a HIPAA violation. However, we note that the Agency properly analyzed claim 1 as a violation
of the Rehabilitation Act and will address this herein.

To the extent that Complainant argues that she was discriminated against when she was denied a
reasonable accommodation, we note that the Commission has held that it is not appropriate for a
complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland
Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should she wish to pursue an allegation
of a failure to accommodate, Complainant is advised to contact an EEO counselor to initiate the
administrative process.

Medical Disclosure

Under the Rehabilitation Act, information “regarding the medical condition or history of any
employee shall be collected and maintained on separate forms and in separate medical files and be
treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C.
§12112(d)(4)(C). This requirement applies to all medical information, including information that
an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act
(ADA), No. 915.002, at 4 (July 26, 2000). Employers may share confidential medical information
only in limited circumstances: supervisors and managers may be told about necessary restrictions
on the work or duties of the employee and about necessary accommodations; first aid and safety
personnel may be told if the disability might require emergency treatment; and government
officials investigating compliance with the ADA and Rehabilitation Act must be given relevant
information on request. 29 C.F.R. § 1630.14(c)(1).

The record shows that when S2 learned of Complainant’s reasonable accommodation, she
convened a meeting on June 15, 2016, with S1 and the leaders of the husbanding team. S2 denied
disclosing Complainant’s specific medical condition, but she stated that it was inferred that
Complainant had one because they discussed her reasonable accommodation. S2 stated that the
purpose of the meeting was to ensure coverage in case Complainant had to leave. ROI at 548-50.
We find that the evidence does not support that S2 disclosed Complainant’s medical condition.
Further, we find that S2’s disclosure that Complainant had a medical condition falls within one of
the exceptions because she wanted to discuss with TL and SFA how to properly handle
Complainant’s reasonable accommodation, when needed. As such, we find that the Agency did
not violate the Rehabilitation Act when S2 disclosed that Complainant had a medical condition.
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Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of disability discrimination,
we find that the management officials proffered legitimate, nondiscriminatory reasons for their
actions. For claim 2, SFA stated that Complainant was asked to keep a log of her work due to a
lack of work coming from Complainant. ROI at 501-2. Regarding claim 3, SFA stated that they
sent Complainant’s assignments through S1 because she was Complainant’s first line supervisor.
ROI at 506. For claim 4, S2 stated that she denied Complainant’s request to telework because she
did not have a telework agreement on file, and she had not completed the telework training. ROI
at 565. Regarding claim 6, SFA stated that she asked Complainant to write down what she was
doing, and to submit her work for review. SFA stated that she also asked TL to do the same so that
SFA could get a good grasp of the work coming in, and of the requirements of the team, since it
was new to her. ROI at 509-10.

We find that Complainant has not shown that the proffered reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. On appeal,
Complainant has not made any arguments, nor provided evidence, to establish pretext for
discrimination. Accordingly, we find that Complainant did not establish that the Agency
discriminated against her based on her disability.

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Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment,
Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected
to unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16,
1998).

We find that Complainant has not shown that the denial of telework; receiving assignments
through S1; and being instructed to write down her daily duties and track her work were due to her
disability. Assuming, arguendo, that the remaining conduct was based on Complainant’s protected
class, we find that Complainant has not shown that the conduct had the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment. Even if the named employees avoided contact with Complainant,
and TL threw her hands up in the air when Complainant walked by, we find that this behavior was
not so objectively offensive as to alter Complainant’s employment.

In addition, S1 stated that she called Complainant after she received her text message, because she
could not read the doctor’s note because she could not see it because she was at home. S1 stated
that she did not threaten to remove Complainant and asked if everything was ok. S1 stated that she
did inform Complainant that she needed a “working body” and offered to remove her from the
husbanding team and reassign her to another team. S1 denied using the term “crazy,” and stated
that she told Complainant that she would see her when she returned to work. ROI at 477-80. We
do not find that S1’s comments rose to the level of severe or pervasive harassment. As such, we
find that Complainant did not establish that she was subjected to a hostile work environment based
on her disability.

CONCLUSION

We AFFIRM the Agency’s final decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 17, 2019
Date