0120083195
07-02-2012
Dorothy T. Pleasant, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Dorothy T. Pleasant,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120083195
Hearing No. 461-2007-00028X
Agency No. EEO-06-060
DECISION
Complainant timely filed an appeal from the Agency's June 6, 2008, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and whether the AJ properly found that Complainant did not establish that she was subjected to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Housing Revitalization Specialist at the Agency's New Orleans, Louisiana, office. The duties of this position include the oversight of public housing authority within the state of Louisiana and providing technical assistance to public housing programs.
On May 25, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Catholic), color (Black), disability, age (born in 1939), and in reprisal for prior protected EEO activity when:
1. On March 21, 2006, complainant received a rating of "Fully Successful" on the performance appraisal for the period from February 1, 2005, to January 31, 2006;
2. On March 8, 2006, Agency officials transmitted Complainant's request for reasonable accommodation via e-mail;
3. On March 8, 2006, complainant was denied a medical examination at the Agency's expense; and
4. She was denied union representation in relation to claims 2 and 3.
In an investigative statement, Complainant stated that the responding management officials are well aware of her physical and mental disabilities because she has submitted documentation about her impairments to the Employee Assistance Program (EAP) and other HUD representatives on numerous occasions since 1996. Complainant further stated that management was aware of her disability because she previously filed EEO complaints from 1979 until 2006. Complainant also stated that the Director and Field Oversight Manager are well aware of her EEO and union activities because they were named as the responsible management officials in her prior EEO complaints and grievances.
Complainant stated that the Director gave her a "Fully Successful" rating for the period February 1, 2005, through January 31, 2006, although she had to perform Public Housing Revitalization Specialist duties while also performing extensive union activities as union president in the worst Agency office without ever receiving a workload adjustment. Complainant stated that there was no factual reason given for her receiving a "fully successful" rating, although she was not given programmatic or computer training from 1995 until 2006. Complainant further stated that she is the only New Orleans employee who performs extensive EEO and union activities while performing a full GS-12 Housing Revitalization Specialist workload who only receives a "Fully Successful" rating. Complainant also stated that she was not offered a reasonable accommodation of a 21-inch computer monitor, zoom text, magnifying screen, or proper lighting in her workstation.1
Complainant also stated that on March 8, 2006, EAP's Personnel Psychologist (Psychologist) transmitted an e-mail to her and eleven Agency officials that violated Complainant's privacy. Complainant stated that the e-mail falsely stated that the Psychologist would forward all paperwork regarding the recommended disapproval of Complainant's requested reasonable accommodation to Complainant, but the paperwork was not sent to Complainant.
Complainant further stated that Agency Headquarters employees are provided medical examinations by an Agency-contracted doctor for reasonable accommodation requests and on-the-job injury claims. She stated that, in an effort to sabotage her reasonable accommodation request, Agency officials have never cited what is wrong with or needs to be added to her medical documentation for her reasonable accommodation request. Complainant stated that she was not given the opportunity to request a medical examination.
Complainant also stated that an Agency EAP e-mail dated March 8, 2006, was not sent to her designated union representative, which violated the union agreement, the Agency handbook, and Executive Order 13164. Complainant stated that the Agency's actions were a deliberate attempt to deny her union representation.
The Director stated that Complainant was given the rating that she received on her annual performance appraisal because her work performance was at the "fully successful" level.
The Psychologist stated that her supervisor instructed her to send a dictated status update of Complainant's reasonable accommodation request via e-mail, as was requested by Complainant. The Psychologist stated that no medical information was disclosed in the e-mail. The Psychologist stated that the March 8, 2006, e-mail stated the following:
[Complainant], this is to inform you that the Disability Program Manager is recommending disapproval of your reasonable accommodation request. All of your paperwork will be forwarded to you via UPS within the next few days. Thank you.
Report of Investigation (ROI), Affidavit E; Affidavit A, p. 12.
Another Personnel Psychologist (Psychologist 2) stated that Complainant did not request a medical examination at the Agency's expense; therefore, her request was never denied. Psychologist 2 stated that there is no record of Complainant advising her that she had a union representative or the name of a representative. Psychologist 2 further stated that, according to the Agency handbook, employees are responsible for initiating a request for representation if a Reasonable Accommodation Committee is convened.
The record contains a copy of Complainant's performance evaluation dated March 21, 2006. The appraisal reflects that Complainant was given a "fully successful' in all six elements. The employee comments section of the evaluation states, "[D]ue to the lack of skill enhancing training and functioning equipment, including 21 inch monitor and high grade lap top --- my rating should be OUTSTANDING since 1986." ROI, Exhibit 3.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On June 5, 2007, the Agency moved for a decision without a hearing. Complainant did not respond to the Agency's motion. On or about May 28, 2008, the AJ issued a decision without a hearing in which she found that Complainant failed to prove that she was subjected to unlawful discrimination. Specifically, with respect to claims 1 and 4, the AJ found that Complainant failed to establish a prima facie case of discrimination on the bases of race, color, sex, national origin, age, or religion. Additionally, the AJ also found that Complainant failed to establish a prima facie case of disability discrimination because she did not demonstrate a casual connection between her disability and the Agency's alleged actions. Finally, the AJ further found that Complainant failed to present any evidence that proves that the Agency's articulated non-discriminatory reasons for its actions were pretext for unlawful discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant does not raise any argument on appeal. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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").
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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 Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
As an initial matter, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
For purposes of analysis and without so finding, we assume that Complainant is an individual with a disability and established a prima facie case of discrimination based on disability, age, race, color, sex, religion, and reprisal. Further, we determine that the Agency provided legitimate, non-discriminatory explanations for its actions, as noted above. We find that the AJ properly found no discrimination because Complainant did not provide any evidence from which a reasonable fact-finder could conclude that the Agency's articulated non-discriminatory reasons were pretext for unlawful discrimination.
Regarding Complainant's claim that the Psychologist's e-mail violated her medical confidentiality, we note that, generally, information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record. See 29 C.F.R. � 1630.14; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the American with Disabilities Act ("Guidance"), Notice No. 915.002 (rev. Oct 17, 2002). Footnote 111 of the Guidance contains the following exceptions: "The limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; 2) first aid and safety personnel may be told if the disability might require emergency treatment; 3) government officials investigating compliance with the ADA must be given relevant information on request. See also 29 C.F.R. � 1630.14(c)(1); Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). By its terms, the requirement applies to confidential medical information obtained from any employee and is not limited to individuals with disabilities. See Hampton, EEOC Appeal No. 01A00132. If an agency discloses medical information pertaining to complainant in a manner that did not conform to this regulation, then its act of dissemination would constitute a violation of the Rehabilitation Act. See Hampton, EEOC Appeal No. 01A00132. There is no requirement of a showing of harm beyond the violation. Id.
In the instant matter, the record reveals that an EAP Psychologist informed Complainant and management officials that her request for a reasonable accommodation had been denied. The e-mail did not disclose any information about Complainant's symptoms, diagnosis, prognosis, or the specific requested accommodation. Therefore, we conclude that the e-mail did not reveal any confidential medical information. See New v. U.S. Postal Service, EEOC Appeal No. 0120080269 (May 28, 2010); Simmons v. U.S. Postal Serv., EEOC Appeal No. 0120093503 (Feb. 27, 2012). Consequently, we do not find that the e-mail violated the Rehabilitation Act.
Finally, we note that in her affidavit statement, Complainant often referred to the denial of her requests for various reasonable accommodations. The instant complaint does not include an accepted denial of reasonable accommodation claim, and the Commission has addressed many of the reasonable accommodation claims raised by Complainant in her affidavit statement in previous decisions. See Pleasant v. Dep't of Housing and Urban Devel., EEOC Appeal No. 01A52841 (May 2, 2006); and Pleasant v. Dep't of Housing and Urban Devel., EEOC Appeal No. 0120080672 (Oct. 22, 2010). Therefore, we decline to revive Complainant's previous reasonable accommodation claims herein.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
July 2, 2012
Date
1 We note that the complaint at issue herein does not include an accepted claim of denial of reasonable accommodation. See discussion in text, infra.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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