0120140267
05-18-2016
Kristophere M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristophere M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120140267
Hearing No. 530-2012-00259X
Agency No. 4C-080-0135-11
DECISION
On October 3, 2013, Complainant filed an appeal from the Agency's August 29, 2013, final order concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issues presented in this case is whether the Equal Employment Opportunity Commission's Administrative Judge (AJ) erred in finding in a decision without a hearing that Complainant did not suffer a per se violation when his supervisor discussed his injury in front of other supervisors.
BACKGROUND
Complainant worked as a City Letter Carrier at the Agency's Trenton Annex facility in Trenton, New Jersey. On June 18, 2011, Complainant sustained a serious injury to his left knee in a work-related accident. In July 2011, Complainant's attorney requested copies of photographs and other documents relating to his accident. Following a second request for the photographs, the Agency produced seven photographs of the accident scene. On September 13, 2011, Complainant went to the Postal Service Annex in Yardville, New Jersey to submit a completed CA-17 form and to pick up another CA-17 form for his doctor to complete. While Complainant waited for the form, the Postmaster accompanied by three other management officials approached him. They formed a semi-circle around him and the Postmaster requested that Complainant give him the completed CA-17 so that he could review his restrictions. Complainant maintained that the Postmaster's discussion with him was highly inappropriate, in that it was in the presence of individuals who simply did not have a need to know his personal and medical affairs.
Complainant asserted that the Postmaster treated him as though he were a "careless employee" and a "worthless malingerer who abused the system." According to Complainant, he felt "extremely" uncomfortable and intimidated by the Postmaster's questioning in the presence of others. He maintained his right to privacy was violated and he left the facility feeling harassed, embarrassed and humiliated.
On December 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (left knee injury) and reprisal when on September 13, 2011, Complainant was subjected to unlawful medical disclosure when the Postmaster approached him with three other supervisors to discuss Complainant's medical condition.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 11, 2013, motion for a decision without a hearing and issued a decision without a hearing on August 8, 2013. The AJ found no discrimination. Specifically, the AJ found that Complainant failed to establish a per se violation of improper Agency disclosure of medical information, as the record showed that the Agency's actions fell within the limited exceptions to the confidentiality requirement pursuant to 29 C.F.R. �1630.14(c), and that was permissible to allow an Agency to make inquiries into the employee's ability to perform job-related functions, thereby granting management permission to be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.
Additionally, the AJ found that though Complainant had made a prima facie case of reprisal, the Agency articulated legitimate, non-discriminatory reasons for its action, namely, that the Postmaster wanted to know the extent of Complainant's restrictions. The AJ found that Complainant did not refute the Agency's articulated reasons. According to the AJ, the record showed that management approached Complainant regarding his Form CA-17, which was utilized for the purpose of obtaining a duty status report for the employee completing said form. Complainant did not contend that the conversation was held while in the presence of non-management officials or for purposes other than related to the Form CA-17. For these reasons, the AJ found that Complainant failed to establish an improper Agency disclosure of medical information. Viewing all of the evidence in the light most favorable to Complainant, the AJ found that Complainant did not establish, by a preponderance of the evidence, that he was discriminated against because of disability. Thus, the AJ found that summary judgment was appropriate in this case.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that contrary to the legal conclusion of the AJ, the actions of the four management officials constituted a per se violation of the Rehabilitation Act of 1973 and constituted a violation of Complainant's privacy rights. Complainant noted that EEOC regulations provide for the confidentiality of medical records, and make it clear that information obtained . . . regarding the medical condition or history of any employee shall... be treated as a confidential medical record, except that: (1) 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); see also Valle v. United States Postal Service, EEOC Request No. 059605S5 (September 5, 1997).
Complainant's maintains the Postmaster demanded to see his CA-17 form, and that the CA-17 form contained medical information which Complainant's supervisor and other management officials who did not supervise Complainant did not have a legal right to access or obtain. For instance, the CA-17 form contained clinical findings and diagnoses-medical information which was important for a medical practitioner to have in evaluating an employee's physical limitations. However, Complainant argues, a supervisor has no right to this highly personal medical information.
Additionally, the Postmaster questioning of Complainant on matters that were highly personal to Complainant in the presence of three other supervisors who were not in Complainant's supervisory chain and who did not have a legitimate need to know of Complainant's personal affairs, was a violation of Complainant's privacy rights.
According to Complainant, the AJ erred by misinterpreting the ADA and by concluding that the Postmaster merely reviewed a document containing only physical restrictions and limitations. By insisting that Complainant provide the CA-17, the supervisor violated the ADA. Complainant requests that the Commission remand this matter for a hearing.
In response, the Agency maintains that there was no new evidence presented, there are no material facts at issue, and the AJ made the correct finding in this case. The Agency also asserts that any new evidence should not be considered. The Agency requests that the AJ's decision without a hearing in favor of the Agency be affirmed.
ANALYSIS AND FINDINGS
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. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 Chapter 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").
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 Def., 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 review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was asked work related questions that involved when he expected he would return to work and whether he had restrictions. We find that Complainant did not provide any evidence which suggests that the Agency's articulated legitimate, nondiscriminatory reason was pretext for discrimination. Moreover, we agree with the AJ that the Postmaster asking for this type of information under these circumstances falls under the confidentiality exception. Other than Complainant's conclusory statements that the Postmaster's actions were wrong and a per se violation, he provided no evidence that remotely suggested that any personal information was solicited or provided.2 We find that asking an employee when he was going to return to work and whether he had any restrictions in front of three supervisors did not violate the confidentiality requirements.
CONCLUSION
Accordingly, we find that Complainant did not demonstrate that he was subjected to discrimination or that a per se violation of the Rehabilitation Act occurred. Therefore, the Agency's final order which fully implemented the AJ's decision without a hearing which found that Complainant did not demonstrate that he was subjected to discrimination or a per se violation is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
___5/18/16_______________
Date
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.
2 We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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