[Redacted], Linda F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003767 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003767 Agency No. 1G-336-0005-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 15, 2020 final decision 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. Complainant worked as a Mail Handler Equipment Operator, PS-06, at the Agency’s Ybor City Processing and Distribution Center in Tampa, Florida. On December 6, 2019, Complainant filed a formal EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), color (Black), disability (Physical - Back, Left Arm, Left Shoulder and Neck) and in reprisal for prior protected EEO activity when: 1. On September 1, 2019, the supervisor (DOS1) made an inappropriate comment and subsequently on October 22, 2019 the plant manager admitted to her that DOS1 made the inappropriate comment; 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. 2020003767 2 2. On or about September 4, 2019, Complainant became aware that an email referencing her Office of Workers’ Compensation (OWCP) claims (medical) was disseminated to members of management and the union; 3. On September 9, 2019, Complainant was issued a Letter of Warning for Unsatisfactory Performance - Failure to be Regular in Attendance; and 4. Beginning on November 26, 2019 through December 4, 2019, Complainant was questioned about her breaks and did not receive the same amount of help. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. After not receiving a response from Complainant within the 30-day regulatory time frame, the Agency issued its final decision. In the decision, the Agency found that Complainant had not established that she had been discriminated or retaliated against as alleged. ANALYSIS AND FINDINGS 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 law”). 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). Consequently, where unauthorized disclosure of medical information is at issue, it is not necessary to prove the existence of a discriminatory motivation in order to establish a violation of the Rehabilitation Act; mere disclosure of such information without justification is enough. See e.g. Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for reconsid. den'd EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). In the instant case, DOS1 averred that he was notified by the Agency’s Injury Compensation Office that the claims upon which Complainant were relying to justify her continued absences from work were no longer active. DOS1 stated that he sent an email to the other managers and officials notifying them of the information he received. IR 142-43, 153-44. 2020003767 3 Nowhere in the record are there any indications that DOS1 disclosed or revealed any of Complainant’s confidential medical information. DOS1 was merely reporting Complainant’s efforts to use her closed OWCP cases to justify her ongoing absences. Accordingly, the Commission finds that Complainant has not demonstrated that the Agency unlawfully disclosed her confidential medical information in violation of the Rehabilitation Act. 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 adverse actions under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since management officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incident (1), DOS1 admitted that he used improper language toward Complainant and that he had lost his temper after Complainant had accused him of lying in the past. IR 141. The Plant Manager stated that he reviewed the incident after Complainant reported it and ultimately gave DOS1 an official discussion regarding using improper language when communicating with an employee. Regarding incident (2), as discussed above, DOS1 denied disclosing any confidential medical information about Complainant and only informed management officials about the status of Complainant’s OWCP claims. As to incident (3), the supervisor (DOS2) averred that he issued Complainant a letter of warning due to her failure to be regular in attendance. IR 173. The record reveals that Complainant had accumulated multiple instances of unscheduled leave from June through August 2019. IR 114. Concerning incident (4), DOS2 averred that he reassigned the employees who were assisting Complainant based upon operational needs, emphasizing that he needed those employees in other operations. IR 177. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by the management officials for their actions were 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 reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Beyond her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the statements made by DOS1 and DOS2 under oath. Nothing in the record casts doubt upon nor causes us to question the veracity of DOS and DOS2 as witnesses. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. 2020003767 4 Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. After reviewing the evidentiary record in its entirety, we find that that it does not support the existence of discriminatory or retaliatory animus. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003767 5 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). 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. 2020003767 6 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 November 4, 2021 Date