[Redacted], Jean F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

Appeal No. 2019000117 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jean F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019000117 Hearing No. 510-2017-00257X Agency No. 4G-320-0185-16 DECISION 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 August 8, 2018, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services at the Agency’s Centerville Station in Tallahassee, Florida. On April 1, 2015, Complainant met with the District Reasonable Accommodation Committee (DRAC) to discuss his reasonable accommodation request. Complainant submitted two medical documents, which stated that he received a liver transplant and that it was medically necessary for him to have the same days off, for example, Sundays and Tuesdays. 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. 2019000117 2 The Labor Relations Specialist (LRS) who served as the DRAC chair, sent Complainant a follow- up letter stating that his medical information was incomplete. LRS requested that Complainant provided additional information, including a “clear and concise medical rationale for as to why [Complainant] must have the work schedule and off days” he was seeking. Report of Investigation (ROI) at 196-200. LRS stated that Complainant’s request was closed because he did not provide the requested information. ROI at 170. Complainant stated that on August 26, 2016, and September 16, 2016, his first-line supervisor (S1) asked questions about his medical restrictions in front of another employee. ROI at 111. Complainant stated that on September 9, 2016, S1 informed him that he was scheduled to work on October 11, 2016, which was one of Complainant’s off days. Complainant stated that he informed S1 that doing so would be a violation of his doctor’s orders, and that S1 directed him to work. Complainant worked eight hours on October 11, 2016. ROI at 114-15. On September 13, 2016, Complainant submitted another request for a reasonable accommodation. Complainant requested a consistent schedule, and for the Agency to have an alternative plan for coverage for other employees’ vacations and emergencies. ROI at 45-6. On October 21, 2016, Complainant met with DRAC to discuss his request. LRS stated that during an interview for another position, Complainant stated that he could work a varied schedule, with no set days off. Due to the conflicting statements, on November 2, 2016, the Agency sent Complainant a follow- up letter requesting additional information from Complainant’s doctor. For example, the Agency asked if Complainant’s schedule had to have Sundays and Tuesdays off, and if Complainant is given a schedule with two days off together, can they be any two days together? ROI at 170,202. On November 18, 2016, Complainant’s second-line supervisor (S2) conducted an investigative interview with Complainant regarding allegations that he falsified “clockrings” for carriers. S2 stated that he noticed that carriers were manually “moved to the street.” S2 stated that after reviewing several months of clockring data and seeing the same activity, he decided to conduct the investigative interview. S2 stated that after the investigative interview, he requested Complainant’s proposed removal. ROI at 159,188-92. On December 8, 2016, LRS emailed Complainant a copy of the request for removal. LRS stated that he sent the email accidentally to Complainant.2 ROI at 125,171. On December 2, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male, gay), disability (liver transplant), and in reprisal for prior protected EEO activity when: 1. on August 26, 2016, and September 16, 2016, S1 discussed Complainant’s private medical information in front of another employee; and 2. on October 11, 2016, Complainant was directed to work outside of his medical restrictions. 2 There is no evidence that Complainant was issued a proposed removal. 2019000117 3 Complainant also alleged that he was retaliated against for filing the instant EEO complaint when: 3. on December 8, 2016, Complainant received an email about a Proposed Removal, which resulted in an investigative interview. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant established a prima facie case of discrimination based on retaliation for protected EEO activity, but not based on his sex or disability. However, the Agency assumed for the sake of argument that Complainant established a prima facie case of discrimination on all his bases, and found that management officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, S1 stated that the discussion involved whether Complainant provided updated information to DRAC and his work limitations. S1 added that Complainant freely shared his medical condition with employees at the station. Regarding claim 2, S1 stated that she directed Complainant to work on October 11, 2016, but that he still had two days off that week. S1 stated that Complainant had not provided the requested medical information to DRAC, and that he agreed to a different work schedule for a detail assignment. For claim 3, LRS stated that while trying to move the email to another folder, he inadvertently sent it to Complainant. The Agency then found that Complainant had not established pretext for discrimination because he had not presented any plausible evidence showing that the management officials’ reasons for their actions were factually baseless or not their actual motivation. The decision concluded that Complainant did not prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant argues that the Agency incorrectly found that he did not establish a prima facie case of discrimination based on disability or sex, or in reprisal for protected EEO activity. For claim 1, Complainant asserts that a “disability-related inquiry” may elicit information about a disability, and that S1 admitted to discussing workplace limitations and asking Complainant about the DRAC’s request for information. In addition, Complainant states that this conversation occurred in front of a witness, who was a National Association of Postal Supervisors representative, and that information can be confidential even if it contains no medical diagnosis or treatment course, for example, his request for a reasonable accommodation. As such, Complainant argues that the Agency disclosed his confidential information in front of another employee. Regarding claim 2, Complainant states that he established a prima facie case of discrimination because he belonged to a protected class and suffered an adverse action when he was forced to work outside of his restrictions. Complainant asserts that the Agency ignored his documentation from his healthcare providers. For claim 3, Complainant argues that the accidental emailing of a proposed removal was not the entire issue. 2019000117 4 Complainant asserts that S2 recommended his removal prior to the pre-disciplinary interview, and that there is a temporal proximity between his EEO activity and the investigative interview. Complainant argues that S2 made the request to remove him prior to the investigative interview, and that there is no logical explanation as to why a request to remove him occurred prior to an actual investigative interview. Complainant asserts that this shows for pretext for discrimination. Complainant requests that the Commission find in favor of his complaint of discrimination based on disability, sex, and retaliation. The Agency argues that Complainant has not proven that the Agency discriminated or retaliated against him and requests that the Commission affirm its final decision. 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 Chap. 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 law”). Medical Disclosure Under the Rehabilitation Act, 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); see 42 U.S.C. §12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). 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 Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1). Complainant argues that S1 improperly disclosed his medical information to a third-party witness.3 3 The record does not contain a statement from this witness. 2019000117 5 S1 denied disclosing Complainant’s medical information, and she stated that she only discussed his limitations. ROI at 138. To the extent that Complainant asserts that S1’s “disability-related inquiry” was unlawful because it would elicit information about his disability, we find that even if S1 disclosed Complainant’s medical information, it falls within the exception that supervisors and managers may be told about necessary restrictions on the work or duties of the employee, and about necessary accommodations. In this case, the witness was another management official, and the discussion was related to Complainant’s request for an accommodation. Therefore, we find that Complainant has not established that the Agency improperly disclosed his medical information. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. 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 his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case based on sex, disability, and retaliation, we find that the Agency proffered a legitimate, nondiscriminatory for their actions. For claim 2, S1 stated that she scheduled Complainant to work on October 11, 2016, because he agreed to a detail assignment, which had different hours and days off. ROI at 140. For claim 3, LRS stated that he accidentally sent Complainant a copy of the proposed removal while he was trying to save the document. ROI at 171-2. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see McDonnell Douglas, 411 U.S. at 804-05. 2019000117 6 For claim 2, Complainant states that the Agency ignored his medical documentation; however, we note that Complainant did not dispute S1’s statement that he agreed to work a different schedule for a detail assignment. We note that Complainant did not claim that claim 2 constitute a denial of a reasonable accommodation. Regarding claim 3, Complainant argues that S2’s action in requesting his proposed removal prior to the investigative interview shows pretext for discrimination. However, we find that this does not prove that LRS’s reason that he accidentally sent the email to Complainant is unworthy of credence, or that unlawful discrimination more likely motivated LRS. We note that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). As such, we find that Complainant did not establish that the Agency discriminated against him based on sex or disability, or in reprisal for protected EEO activity, when he was directed to work on October 11, 2016, and when LRS emailed him a copy of a request for his removal on December 8, 2016. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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. 2019000117 7 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 January 14, 2020 Date