Merilyn W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160120140433 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merilyn W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120140433 Hearing No. 532-2010-00035X Agency No. 1C-441-0048-09 DECISION The Commission accepts Complainant’s appeal from the Agency’s November 13, 2013 final action 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. and 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 MODIFIES the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s General Mail Facility in Cleveland, Ohio. Complainant suffered an on-the-job injury in 2002, and was a limited duty employee thereafter. Complainant has permanent nerve damage and a herniated disc which affect her ability to walk long distances, sleep, sit, and stand. Since 2008, she has held a bid position on the Flat Sorter machine. The essential functions of a mail handler include working at Flat Sorter machines, preparing mail from buckets or belt for mail clerks to process, dropping buckets when empty and clearing jams. 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. 0120140433 2 In March 2009, a new supervisor (S1) entered duty in the Flat Sorter operation. S1 was assigned to the unit to increase productivity, and immediately started making changes to achieve that goal. Some of the changes included changing rotations on the machines which caused the breakup of groups of friends who liked to work together and tightening up break times. Under S1’s supervision, productivity and efficiency did improve, but most employees were unhappy with the changes, including Complainant. S1 reviewed Complainant’s medical restrictions after observing that Complainant was working four hours a day with two hours off for breaks and leaving two hours earlier than the end of the tour. Additionally, Complainant was not clocking out for lunch. Based on a review of Complainant’s Duty Status Report (CA-17), S1 believed that Complainant was to be working six hours a day with two hours for breaks and a lunch. S1 asked Complainant about the situation, and Complainant informed her that S1’s predecessor had allowed her to leave early because she was having childcare issues. S1 informed Complainant that she was no longer going to permit her to leave early and that she needed to provide her with updated medical documentation justifying the early dismissal. Complainant did not provide medical documentation until late-April 2009. As of April 27, 2009, Complainant was restricted to lifting up to twenty pounds for six hours, and sitting, standing, walking, and pulling/pushing intermittently for four hours a day. Complainant's CA-17 stated “The Employee Works 6 Hours Per Day” and “Pt. —to take 2 one-[hour] breaks per day due to lumbar—.” In May 2009, Complainant submitted a CA-7 to the Human Resources Specialist (HRS) for a recurrence of an injury. Additionally, she submitted leave slips to S1 and another supervisor (S2) for two hours of leave without pay/injured on duty (LWOP/IOD) to allow her to leave early each day, which S1 approved. Complainant's CA-17 indicated that Complainant could work six hours a day with two one- hour breaks. On May 26, 2009, S1 provided Complainant with a Modified Job Offer, limiting her to lifting no more than 10 to 20 pounds and working six hours, five days a week with extended break (one hour) and lunch (one hour) times. Complainant had previously been working six hours per day without taking a lunch, leaving two hours prior to the end of her shift. Complainant believed the new modified job offer was a violation of her medical restrictions and was harassment. On June 1, 2009, Complainant had a work capacity evaluation done for the Department of Labor. The evaluation determined that Complainant had the following restrictions: Complainant could work six hours a day, lift no more than 20 pounds; and push, pull, sit, walk, and stand for no more than four hours. On June 25, 2009, S1 requested that Complainant's breaks be moved from 12:30 a.m. to midnight, and her lunch from 3:30 a.m. to 2:30 a.m., so that she would be returning from her break with her co-workers. Complainant had been taking her break in excess of one hour and 0120140433 3 moving her break made it easier for S1 to keep track of her break. Further, with Complainant back from her break with the other mail handlers, the machines were more fully staffed resulting in greater productivity. Additionally, moving Complainant's lunch up an hour enabled her to work an hour after lunch before clocking out, improving productivity. However, this resulted in Complainant working alone for one half hour prepping the mail before her colleagues returned from lunch. Due to her medical restrictions Complainant was restricted to prepping mail only and not working at any of the other locations on the Flat Sorter machine. On July 9, 2009, S1 instructed Complainant to work on Flat Sorter Machine number 15. Complainant had been working on Flat Sorter number 14, but was moved to machine number 15, because another mail handler with medical restrictions and more seniority than Complainant had requested a place on machine number 14. Complainant became upset because she was moved to machine number 15 while a part-time flexible employee was permitted to work on machine number 14. Complainant performed the same duties on machine number 14 as she did on machine number 15, and she was not medically restricted from working on any particular Flat Sorter. Complainant submitted a CA-17 on August 7, 2009, restricting her to lifting up to 10 pounds for four hours a day and sitting, standing, walking and pulling/pushing intermittently for no more than four hours a day. On September 8, 2009, Complainant was notified that her workers’ compensation claim had been denied. On October 7, 2009, S1 sent an email to HRS asking for clarification of Complainant’s six- hour schedule and restrictions in light of the denied workers’ compensation claim. HRS responded that Complainant was to be placed back on an eight-hour work day with lunch and break limes reverting to what they were prior to the Modified Job Offer in May 2009. Additionally, HRS sent Complainant a letter requesting updated medical information within 30 days. S1 provided Complainant with a new Modified Job Offer that placed her in Room 42, increased her scheduled hours from six to eight hours, and changed her break times.2 Complainant protested the change in her schedule and argued that she was being made to work outside of her restrictions. S1 told Complainant to submit medical documentation in order to substantiate her continuance on a six-hour workday. When Complainant's work hours were increased to eight hours a day, Complainant asked to go home because of back pain. In addition, S1 instructed Complainant to go to Room 42 for the second half of her lunch period and the period of time her breaks went over the normal break time. S1 subsequently discovered that she was given incorrect information by HRS as it was Complainant’s injury recurrence that was denied by OWCP, and not her original injury. S1 offered Complainant a new modified job assignment on October 20, 2009, in Room 42 for six hours a day with a one hour break and a one hour lunch. S1 assigned Complainant to Room 2 Room 42 is where employees who are unable to perform productive work because of their restrictions are placed until work is available within their medical restrictions. 0120140433 4 42, because S1 was unsure of Complainant’s restrictions and Complainant had already filed one recurrence of her work injury and she did not want to expose her and the Agency to another work injury. Complainant was told that she would be in Room 42 until she brought in medical documentation regarding her restrictions. Complainant claimed that S1 harassed her by following her around during her lunch and break periods and at her machine, constantly yelling and threatening her, and requesting medical documentation. Further, Complainant alleged that S1 told her she did not want to work with Complainant, because of her impairment and that she asked Complainant for medical documentation on the work floor in front of other employees. S1 denied saying that she did not want to work with Complainant because of her impairment. In addition, S1 stated that while she did ask Complainant for documentation while on the workroom floor, she did not discuss any specifics about her medical condition. Complainant had only submitted medical documentation to S1 in April 2009, and all other medical documentation had been submitted to other Agency officials. Complainant testified that she had filed a workers’ compensation stress claim describing the stress she was experiencing at work, including information about a miscarriage she had suffered. Complainant’s statement was forwarded to the Agency for a response. S1 received a copy of the statement and asked to respond to allegations made by Complainant. This was the first time S1 became aware that Complainant had been pregnant and suffered a miscarriage. Complainant spoke with the Union Steward about Complainant’s pregnancy and miscarriage. Others learned of Complainant’s miscarriage in spite of Complainant’s wishes that the information not be made public. Complainant discussed her belief that S1 was harassing her with S2 and the Union Steward. In addition, Complainant attempted to change tours to move away from S1. Several employees had complained about working under S1, and S2 discussed these complaints with the Distribution Operations Manager (M1) and the Customer Service Manager (M2). The Agency investigated the situation, but the investigation determined that S1 acted properly in giving instructions and making changes. On July 24, 2009 (and amended on October 13, 2009), Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), color (Black), disability, and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, management rotated her work assignment and changed her break and lunch times; her request for two hours of OWCP pay was charged as two hours of LWOP (Leave Without Pay); she was taken off of her bid, worked outside of her restrictions and instructed to hit operation 340 and go to room 42 every night. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 0120140433 5 The AJ partially granted the Agency’s motion and issued a summary judgment decision on August 2, 2011, regarding Complainant’s race, color, sex, and reprisal-based discrimination and hostile work environment claims. The AJ held a hearing on February 13, 2012, as to Complainant’s disability discrimination claims, and issued a decision on September 30, 2013. In her summary judgment decision, the AJ determined that alleged conduct at issue was not sufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the incidents at issue were based on discriminatory or retaliatory animus, and instead involved routine work assignments, instructions, and admonishments, and were within the purview of S1’s position as her supervisor. Complainant failed to show that the Agency’s reasons for its actions were pretext for unlawful discrimination or reprisal. As a result, the AJ found that Complainant had not been subjected to race, sex, or color discrimination or reprisal. In her decision following a hearing, the AJ determined that Complainant failed to establish that S1’s actions were based on Complainant’s disability, but rather in order to improve efficiency and production in the unit. The majority of S1’s conduct involved work assignments, instructions, requests for medical information and admonishments; all well within the purview of her position as supervisor. Therefore when viewed in the context of the totality of the circumstances S1’s actions did not create a severe and pervasive atmosphere based on the Complainant's disability. The AJ found that it was clear from the testimony of several witnesses that S1 was not an easy supervisor to work for and that she had come into the unit to improve productivity, which she did by shaking things up and making many employees unhappy and felling harassed regardless of their physical condition. The AJ found that, as a limited duty employee with a disability, the Agency was reasonably accommodating Complainant with a modified job offer within her restrictions. When S1 came into the unit and changed how, when, and where Complainant was to perform the modified job offer, it was still a reasonable accommodation under the Rehabilitation Act. The AJ noted that Complainant was not entitled to her choice of reasonable accommodation. The changes made to break and lunch times, which machine she worked on, and where she took her rest breaks did not violate Complainant's medical restrictions. S1 was within her rights to ask for medical information regarding Complainant's restrictions, as part of the interactive process in determining a reasonable accommodation. In this instance, Complainant did not believe that she needed to provide S1 with the requested information, but under the Rehabilitation Act she is required to participate in the interactive process and she should have provided S1 the information she requested in an attempt to accommodate Complainant's medical restriction. As a result, the AJ found that the Agency had not discriminated against Complainant based on her disability or denied her reasonable accommodation in violation of the Rehabilitation Act. However, the AJ determined that S1 clearly violated the medical records and disclosure provisions of the Rehabilitation Act when she spoke to the Union Steward regarding Complainant’s pregnancy/miscarriage. The AJ noted that it was a per se violation of the law to disclose confidential medical information regarding an employee and that is what S1 did 0120140433 6 when she spoke to the Union Steward about Complainant’s health whether it was her pregnancy or the miscarriage, both are protected medical information. As a result, the AJ determined that Complainant was entitled to $1,000 in compensatory damages based on the length, severity and circumstances of Complainant's emotional distress resulting from the release of her very personal business through her medical information and resulting comments by her co-workers for a brief period of time. In addition, the AJ ordered the Agency to provide training to S1 regarding the confidential medical documentation provisions of the Rehabilitation Act, to consider disciplining S1, and to post a notice. On November 13, 2013, the Agency issued its final action fully implementing the AJ’s decision and the relief ordered. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that S1 harassed and bullied her nightly and alienated her from her friends and co-workers by changing all employee break times. Complainant claims that S1 constantly made false accusations to management officials and the union and provided false testimony during the hearing. Complainant contends that S1 subjected her to a hostile work environment by constantly yelling at her, harassing her about her medical documentation, and attempting to dictate who she talked to on her breaks. Complainant states that she was shocked and distraught when S1 revealed her personal and confidential information about her miscarriage to others. Accordingly, Complainant requests that the Commission reverse the final action. ANALYSIS AND FINDINGS The AJ’s Partial Summary Judgment Decision The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. Hostile Work Environment The Commission notes that to establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. 0120140433 7 City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, the Commission finds that the AJ properly issued partial summary judgment as to Complainant’s race, color, sex, and reprisal claims as the material facts are undisputed. The Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Additionally, Complainant failed to establish that the Agency’s actions were based on discriminatory or retaliatory animus. Moreover, to the extent that Complainant alleges that she was subjected to disparate treatment, Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the Agency finds no basis to disturb the AJ’s grant of partial summary judgment as to Complainant’s race, color, sex, and reprisal claims. The AJ’s Decision After a Hearing Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999). Hostile Work Environment Here, Complainant asserted that based on her protected classes, management subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be harassment based on her disability. The Commission finds that substantial record evidence supports the AJ's determination that Complainant has not shown that she was subjected to 0120140433 8 conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes and tribulations. Furthermore, the Commission finds that there is substantial evidence in the record to support that Complainant did not establish that the Agency's explanation for its actions was a pretext for discrimination. The record and facts gleaned at the hearing fail to disclose any evidence purporting to show the Agency's actions were pretext for discriminatory animus. Thus, after reviewing the record and considering arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and her factual findings are supported by substantial evidence. Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. Denial of Reasonable Accommodation Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without deciding (for the purposes of this decision) that Complainant is a qualified individual with a disability. Upon review, the Commission finds that substantial evidence in the record supports the AJ's finding that the Agency did not deny Complainant a reasonable accommodation. Complainant alleged that the Agency denied her reasonable accommodation by charging her LWOP instead of OWCP/LWOP when she left each day; taking her off her bid; and placing her in Room 42 and working her beyond her restrictions. The record shows that Complainant was not denied leave; rather, her leave was changed from OWCP/LWOP to LWOP after her workers’ compensation claim was denied. Further, while Complainant was assigned to the Flat Sorter Machine, she was not medically restricted to working on any particular Flat Sorter Machine. Finally, substantial record evidence supports the AJ’s finding that the Agency did not fail to accommodate Complainant by placing her in Room 42 and working her beyond her restrictions by assigning her for over eight hours. Complainant’s restrictions were unclear to management in September 2009 after her workers’ compensation recurrence was denied. Therefore, management temporarily sent her to Room 42 where she would not have to work until she submitted updated medical documentation. Complainant alleges that she was required to work eight hours; however, substantial record evidence reveals that Complainant did not perform any work in Room 42. Complainant subsequently went out on stress leave. An employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has not 0120140433 9 offered any evidence that the granted accommodations were ineffective. Therefore, the Commission finds that substantial record evidence supports the AJ's finding that Complainant failed to show that the offered accommodations were ineffective. Accordingly, the Commission finds that Complainant was not denied reasonable accommodation in violation of the Rehabilitation Act. Improper Confidential Medical Disclosure Under the Rehabilitation Act and ADA, 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) (emphasis added); see also 42 U.S.C. § 12112(d)(3)(B), (4)(C). By its very terms, this requirement applies to medical information obtained from “any employee” and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Further, the requirement applies to all medical information, including information that an individual voluntarily discloses. Enforcement Guidance on Employee Inquiries and Examinations; see also EEOC Enforcement Guidance; Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice 915.2002 at 21-22 (Oct. 10, 1995). Documentation concerning an individual's diagnosis or symptoms is confidential medical information. Id. at n. 26. 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 the Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1); see also 29 C.F.R. p. 1630 app. §§ 1630.14(b), 1630.16(f) (employers may use information for workers' compensation and insurance purposes). The Commission notes that the Agency did not contest the AJ’s finding of a per se violation of the Rehabilitation Act in the improper. As a result, the Commission will only review the AJ’s order of relief. When discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq, or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that 0120140433 10 Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). The Commission points out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the agency for its discriminatory actions. See Memphis Cmty, School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that a compensatory damages determination must be based on the actual harm sustained and not the facts of the underlying case). The Commission notes that for a proper award of non-pecuniary damages, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Here, the AJ found that Complainant suffered emotional distress as a result of the Agency’s actions. Complainant testified that she had not told anyone about her pregnancy and miscarriage, and that the only people who knew about it were her fiancé and her doctor. After she returned to work, the Union Steward approached her and told her that S1 had told her that she had a miscarriage. In addition, Complainant was upset because people were coming up to her and asking her questions about it and one employee made a gesture to her of being pregnant. Complainant testified that the gesture was upsetting, because she did not want to keep reliving the situation that she was no longer with child. Complainant testified that this occurred over a three-month time period. The AJ noted that during the time of the release of confidential medical information, Complainant was already receiving psychiatric treatment and taking medications for stress. Nonetheless, the Commission finds that the Agency's award of $1,000 in non-pecuniary compensatory damages is insufficient. Thus, based on the record, the Commission finds that Complainant is entitled to $2,000. The Commission notes that this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Grazier v. Dep't of Labor, EEOC Appeal No. 0120102711 (Sept. 30, 2010) ($2,000 awarded for humiliation and embarrassment when Agency disclosed confidential medical information) and Brunnell v. U.S. Postal Serv., EEOC Appeal No. 07A10009 (July 5, 2001) ($2,000 awarded for embarrassment, anger and stress due to violation of medical confidentiality). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's final action and REMANDS the matter to the Agency to comply with the Order below to the extent that it has not already done so. 0120140433 11 ORDER To the extent it has not already, the Agency is ordered to take the following remedial action: 1. Pay Complainant $2,000 in non-pecuniary damages, within 60 days of the date of receipt of this order. 2. The Agency shall require that S1 attend a minimum of eight hours of EEO training on the laws prohibiting employment discrimination, paying particular attention to Agency's obligations under the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq. with respect to the disclosure of confidential medical information. 3. The Agency shall consider taking appropriate disciplinary action against S1. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall immediately post a notice in accordance with the paragraph below. 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 (G0914) The Agency is ordered to post at the General Mail Facility in Cleveland, Ohio copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 0120140433 12 20013. 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 (M0815) 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, 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). 0120140433 13 COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 April 8, 2016 Date Copy with citationCopy as parenthetical citation