[Redacted], Gigi M., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2020000026 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gigi M.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000026 Agency No. 200H-0632-201900530 DECISION On August 15, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as an Advanced Medical Support Assistant, GS-0679-05, at the Agency’s Medical Center in Northport, New York. On January 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (asthma) when: 1. On October 19, 2018, Human Resources refused to recognize that Complainant’s request for leave under the Family Medical Leave Act (FMLA) had been previously approved by Complainant’s former facility (East Orange) and should have been carried over and her request for FMLA leave was denied; 2. On October 31, 2018, HR refused to reset Complainant’s FMLA hours to zero when Complainant transferred from East Orange to Northport; and 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. 2020000026 2 3. On January 14, 2019, an HR Assistant included an HR Specialist on an email indicating that Complainant's medical documentation entitled her to intermittent leave through February 27, 2019, information which Complainant believed did not need to be included.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant stated that she had been diagnosed with asthma and that her condition was permanent. She reported experiencing limitations in such major life activities as working, cooking, cleaning, and paying bills. She also reported that she was often tired when she got home from work due to being short of breath. She identified the major duties of her position as customer service; serving as liaison between doctors and patients scheduling patients; and answering telephone inquiries. In addition, Complainant stated that she could not perform her job as well as others in her office and that the medication she was taking made her drowsy and upset her stomach. When asked whether she had provided documentation of her medical condition to management, she replied that she did not. IR 63-64. Incident (1): According to a Standard Form 50, Complainant was reassigned from East Orange to Northport effective May 23, 2018. IR 130-31. According to an email dated October 30, 2018 from another HR Assistant, Complainant had been allotted 480 hours (12 weeks) of FMLA leave to be used between December 13, 2017 and December 12, 2018. That email also indicated that as of October 30, 2018, Complainant had used 408.5 hours of FMLA leave, which left her with a balance of 71.5 hours of FMLA leave that had to be used by December 12, 2018. IR 120-21. Complainant claimed that she requested FMLA leave but that the HR Office denied her request on the grounds that the East Orange facility had not provided an FMLA approval letter. IR 67. Both the HR Assistant and the HR Specialist stated that Complainant’s request for FMLA leave was never denied. Rather, the FMLA leave hours that Complainant had remaining from her time in East Orange could not be transferred to Northport until they had obtained the necessary memorandum of FMLA approval from East Orange. HRA averred that they were still trying to procure a copy of that memorandum when Complainant filed her EEO complaint. The HR Assistant reported that Complainant’s leave request was subsequently approved. Complainant later resigned, effective March 15, 2019. IR 72-75, 90, 94, 198. 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges to the dismissal of this claim and the Commission finds no basis to disturb the Agency’s dismissal. 2020000026 3 Incident (2): Complainant alleged that after she transferred from East Orange to Northport, her entitlement to FMLA leave had also transferred and consequently, that the number of hours that she had already used should have been set to zero. She maintained that she had 480 hours of FMLA leave that had been approved while she was still in East Orange, which should have transferred to Northport with her. When asked if she had discussed this with the HR Office, Complainant stated that she had not because she had already filed her EEO complaint at that time. She maintained that East Orange did not provide approval letters as a matter of course, and that they never provided her with an approval letter. She reiterated that Northport had refused to approve her FMLA transfer from East Orange without the approval letter from East Orange notwithstanding that she had faxed the Northport HR Office copies of printouts from the time and attendance system showing that she had used FMLA leave in May 2017. IR 64-67. The HR Specialist affirmed that as of October 30, 2018, she had been unable to verify that Complainant had starting using FMLA leave in May 2017, and that she could only confirm that she started using time in December 2017, and that only after December 12, 2017 could her FMLA leave balance be reset to zero. She further stated that she could only obtain screenshots from East Orange’s time and attendance system showing that Complainant first started using FMLA in December 2017. IR 73, 118, 122-24. In an email to Complainant dated February 19, 2019, the HR Specialist informed her that she could fill out a Standard Form 71 for intermittent FMLA leave, and that the HR Office could redraft Complainant’s letter and seek approval once they received that form. IR 161. Incident (3): Complainant claimed that the HR Assistant sent her an email on January 4, 2019, and cc’d that email to members of her management chain without her authorization. IR 68. The email at the center of this dispute was dated January 14, 2019, not January 4th. It was issued by the HR Assistant to Complainant, cc to the HR Specialist only. Complainant identified the following passage from the email as confidential medical information pertaining to her disability: “Your current medical documentation entitles you to intermittent leave for 8 hours per day, 1 day per week through 2/27/19; [f]lare ups are expected to be 20 times per 12 months for 1-5 days per episode. IR 192. The HR Assistant averred that she included the HR Specialist among the recipients because the HR Specialist was in charge of the leave program and further averred that she did not send copies of the email to Complainant’s management team or anybody else. IR 75- 76, 83-84, 91-92, 94, 170. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,†and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). 2020000026 4 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the HR Assistant and the HR Specialist articulated legitimate and nondiscriminatory reasons for their actions vis-à -vis Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incidents (1) and (2), the HR Assistant and the HR Specialist both maintained that they could neither authorize the transfer of Complainant’s FMLA entitlement nor approve any FMLA leave requested by Complainant until they had obtained the necessary documentation from the HR Office at the East Orange Medical Center. As to incident (3), the HR Assistant stated that she had only cc’d the HR Specialist on the email dated January 14, 2019. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by the HR Assistant and the HR Specialist is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that the actions of the HR Assistant and the HR Specialist constituted disability discrimination, Complainant replied that her asthma was a disability and that they knew that she had asthma. IR 67-68. Apart from these, her own uncorroborated assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the reasons given by the HR Assistant and the HR Specialist or which calls into question their veracity as witnesses. We note in particular that when the EEO investigator asked Complainant why she thought that incident (2) was discriminatory, Complainant gave no answer at all. IR 68. We therefore agree with the Agency that Complainant has not sustained her burden to prove that the HR Assistant or the HR Specialist were motivated by unlawful considerations of Complainant’s medical condition in connection with the incidents described in the above-referenced complaint. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Alleged Unauthorized Disclosure of Confidential Medical Information: The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c); Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for recon. den’d EEOC Request Nos. 2020000026 5 0520180094 & 0520180095 (Mar. 9, 2018). Here there are no indications that anyone other than the HR Specialist had received a copy of the January 14, 2019 email from the HR Assistant. Complainant herself acknowledged that the HR Specialist needed to be included among the recipients because she, the HR Specialist was in charge of processing FMLA leave requests. Ultimately, we find no violation of the Commission’s regulations pertaining to the disclosure of confidential medical information. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020000026 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 9, 2021 Date Copy with citationCopy as parenthetical citation