01992086
08-23-2002
Donald Tyson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Donald Tyson v. United States Postal Service
01992086
August 23, 2002
.
Donald Tyson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01992086
Agency No. 1D272-0022-97
Hearing No. 140-98-8099X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the basis of
disability and retaliated against because of his previous EEO activity
(protected by the Rehabilitation Act) when the agency improperly disclosed
information about his medical condition. For the following reasons,
we find that the agency violated the Rehabilitation Act.
Complainant, a PS 3 custodial laborer at the agency's Bulk Mail Center
in Greensboro, North Carolina, began working for the agency on December
5, 1987, and accepted disability retirement on January 11, 1995.
On October 18, 1996, an arbitrator issued a decision finding that
complainant was constructively discharged when the agency failed to
reasonably accommodate him in violation of the Rehabilitation Act and
the Collective Bargaining Agreement. The arbitrator ordered the agency
to show the greatest consideration and attention in finding a position
within complainant's medical restrictions which, according to the medical
evidence, required an assignment to Tour 2 (daytime shift).
Following the arbitrator's decision, the Manager of the agency's Bulk
Mail Center in Greensboro, North Carolina (RMO), mailed letters to
managers at other postal installations seeking a vacant Tour 2 position
for complainant. The letter, which was mailed to approximately thirty-two
Associate Office Postmasters, discloses complainant's medical diagnosis
and his symptoms.
Believing that this letter improperly disclosed information about
complainant's medical condition, complainant filed a formal EEO complaint
with the agency on July 30, 1997. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge. The Administrative
Judge issued a decision without a hearing, finding no discrimination
or retaliation. The Administrative Judge concluded that the agency
did not violate the Rehabilitation Act because the disclosure at issue
merely identified complainant's physical disability and explained its
effect on his ability to work. Administrative Judge's decision at 5
and 6. The Administrative Judge also concluded that complainant failed
to present any evidence to support a prima facie case of discrimination
based upon reprisal. In its final decision, the agency concurred with
the Administrative Judge's decision stating that the entire evidence
of record did not support complainant's allegation of discrimination
or retaliation. It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
The Commission's regulations allow an Administrative Judge to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
While we concur with the Administrative Judge's conclusion that summary
judgement is appropriate because there are no disputed issues of material
fact presented by this case, we disagree with his ultimate conclusion
because the record establishes a violation of the Rehabilitation Act. The
agency concedes that complainant is an individual with a disability within
the meaning of the Rehabilitation Act. However, we remind the agency that
the Rehabilitation Act does not limit the prohibitions against improper
disclosure of confidential medical information, and improper medical
inquiries, to individuals with disabilities. 29 C.F.R. � 1630.14(c).
Our regulations provide that information obtained regarding the medical
condition or history of any employee shall be treated as a confidential
medical record. Id. The Commission regards documentation of the
individual's diagnosis or symptoms as confidential medical information.
ADA Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations (October 10, 1995) at 22 n.26. However,
supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations.
29 C.F.R. � 1630.14(c).
We find that the contents of RMO's letter violated the Rehabilitation
Act by disclosing complainant's medical diagnosis and symptoms.
See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132
(April 13, 2000). This disclosure was not necessary to alert
managers to restrictions on complainant's work or duties and his need
for accommodations. Accordingly, based on the agency's disclosure of
information about complainant's medical condition, we find that the agency
has violated the Rehabilitation Act. See 29 C.F.R. � 1630.13(a). Such a
disclosure constitutes a per se violation of the Rehabilitation Act Valle
v. United States Postal Service, EEOC Request No. 05960585 (September 5,
1997), Brunnell v. United States Postal Service, EEOC Appeal No. 07A10009
(July 5, 2001). We vacate the FAD, find that the agency violated the
Rehabilitation Act, and remand the issues of compensatory damages and
attorney's fees and costs as provided by the order below.<2>
ORDER
The agency is ORDERED to take the following remedial action:
1. The issues of compensatory damages and attorney's fees and costs
are remanded to the Hearings Unit of the Charlotte District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of the Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
2. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. including the agency's responsibilities not to
disclose confidential medical information.
3. 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 of the
agency's calculation of back pay and other benefits due complainant,
and the agency's decision regarding compensatory damages, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Greensboro, North Carolina 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.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 (R0900)
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 (Z1199)
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
August 23, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., has occurred
at this facility.
Federal law requires that there be no discrimination or retaliation
against any employee or applicant for employment because of that person's
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The United States Postal Service's Greensboro, North Carolina Bulk Mail
Center (hereinafter referred to as �facility�) supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The facility has been found to have disclosed medical information about
an employee's medical condition in violation of the Rehabilitation Act.
The facility has been ordered to give the supervisors involved training
regarding the requirements of the law referred to in this posting and to
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment laws.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Since we find that the agency's disclosure, alone, constitutes a
violation of the Rehabilitation Act, we need not, and do not, address
complainant's retaliation claim.