07A10009
07-05-2001
Douglas M. Brunnell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Douglas M. Brunnell v. United States Postal Service
07A10009
July 5, 2001
.
Douglas M. Brunnell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A10009
Agency Nos. 4E-990-0041-98; 4E-990-0028-99
Hearing Nos. 380-99-8049X; 380-98-8298X
DECISION
Following its October 13, 2000, final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding that the agency violated
the confidentiality of medical records provisions of the Rehabilitation
Act when the agency commingled complainant's medical file with his
personnel file. The complainant also filed an appeal, asserting that
he was entitled to additional compensatory damages. For the following
reasons, the Commission REVERSES the agency's final order.
The record reveals that complainant, a City Carrier at the agency's Metro
Center, Spokane, Washington facility, filed formal EEO complaints with
the agency, alleging that the agency had discriminated on the bases of
disability (paranoia, paranoid schizophrenia, delusional disorder), in
Complaint-1 when the agency subjected him to a hostile environment during
the period between March 1, 1998 and May 1, 1998; and Complaint-2 on the
added bases of reprisal (prior EEO activity) when, he was subjected to
a period of hostile environment between April 1999 through June 2000.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, where six witnesses as
well as complainant testified, the AJ issued a 37-page bench decision
finding no discrimination. However, the AJ did find that the agency
violated the confidentiality requirement of the Rehabilitation Act when
complainant's medical records were commingled with his personnel file.
The AJ concluded that complainant established a violation of the
Rehabilitation Act confidentiality provisions established in 29 C.F.R. �
1614.203(e)(4) and 1630.14(c). Noting that the Rehabilitation Act
and the American with Disabilities Act (ADA) require that all medical
records for employees, whether disabled or not, be kept in medical
files separate from personnel files, the AJ found that in May 2000,
complainant's official personnel file contained two letters from a
physician summarizing complainant's psychiatric treatment and a medical
release form requesting psychiatric files from a different psychiatrist.
The agency failed to state where these medical reports were found. An
agency witness testified that complainant's fitness-for-duty examination
was in the complainant's record, but that it was expunged. However, the
AJ noted that said reports were part of the Report of Investigation (ROI).
Complainant contended that other items in his official personnel file
included a false accident report which initiated letters from supervisors
who were concerned about their safety around complainant when he became
angry. Complainant's personnel file also contains complaints from
co-workers about complainant.
With regard to the merits of complainant's claims, the AJ concluded that
complainant did not establish a prima facie case of disparate treatment
based on disability. The AJ found that complainant showed that he was
a person with a disability, and although complainant showed that he was
qualified for and was performing his job of City Carrier; he, nonetheless,
failed to show that he was treated differently from employees outside
of his protected group.
During the hearing, complainant testified that while picking up his
mail on his route, nine employees at the Washington Gas & Power Company
(Company) accused him of flipping them off with his middle finger and
of casing the premises for a possible crime. On the same day that the
agency questioned him about possible disciplinary action with regard to
this incident, complainant allegedly found an envelope filled with cash in
one of his pick-up mailboxes. Complainant asserted that the odds of the
two events happening on the same day were so remote that is was deductive
proof that agency management was attempting to set him up to be fired.
Complainant admitted that he was scratching his nose and chin with his
middle finger at Company employees, but that he was unaware that it
signified an obscene gesture. In addition, complainant testified that
he was merely looking at the shelves while on the Company's premises.
The AJ found that, intentionally or unintentionally, the complainant
repeatedly caused his middle finger to touch his face which resulted
in customers being insulted and complaining. The AJ also found that
complainant's calculation of the odds of the two things happening on
the same day only proved that a coincidence is rare; but that does not
prove causation or intent on the part of the agency to set complainant
up to be fired. The AJ further found that complainant failed to show
who caused the money to be placed in complainant's pick-up box or that
there was an intent on the part of the agency to discriminate against
complainant because of his disability.
Complainant also alleged that when he called in sick two days in a row,
his Supervisor required medical documentation and charged him absent
with leave (AWOL). The AJ noted that complainant filed a union grievance
and the AWOL was removed. The AJ found that complainant did not offer
any evidence that he was treated any differently from any other agency
employees.
In Complaint-1, complainant alleged that a co-worker (Co-worker A) had
called him an expletive; complainant's Supervisor threatened to discipline
him for driving away from the dock one minute early; a 204-B Supervisor
gave him the finger using a glove; and agency management conspired to
set him up for discipline and removal for all the events mentioned above
including the complaints lodged against complainant by Company employees.
In Complaint-2, complainant alleged that Co-worker B, at the behest of
agency management, provoked complainant into a fight by getting his way
in the dock area and taking his dolly or jit. Complainant also alleged
that on more than one occasion Co-worker B called him �nuts,� as well
as taunted him on other occasions saying, �Earth to Doug;� that a
union steward told complainant that people egged Co-worker B on to
harass complainant; that while in a meeting about his behavior with
the Company, a manager taunted him by saying, �You were set up;� that
a commercial customer on complainant's route became angry and hateful
and with vengeance played mind games with the complainant for being late
everyday; and that an agency driver called complainant an expletive when
complainant's truck accidentally bumped into a United Parcel Service
(UPS) truck. The complainant alleged that agency management is behind
all of the incidents described above with the intent to set complainant
up and fire him.
The AJ found that the only incident approaching harassment based on
disability was the use of the �half nuts� by complainant's co-worker B.
Although this remark is disability based and is unwelcome, the AJ found
however, that this one incident did not meet the severe and pervasiveness
test for harassment. Furthermore, the AJ noted, upon complainant's
complaint to management about the comments, the agency took steps to
separate the two workers and all comments about his disability ceased.
Although the use of the phrase �You were set up,� is the wrong thing
to say to a person with a disability involving paranoia and could be
construed as disability based and taunting, the AJ found that one use
of the phrase was not severe enough, and since it was only one event
by one manager, it was not pervasive enough to constitute disability
harassment.<1>
The AJ also noted that testimony of a union steward at a meeting about
complainant's behavior with the Company stated that the Supervisor was
extremely patient with complainant and no disciplinary action was ever
taken against him.
Complainant also alleged in Complaint-2 that the conduct of the customer
on his route and by Co-worker B were instigated by agency management
in retaliation for filing Complaint-1. The AJ found that the facts
in this case were not sufficient to establish a prima facie case based
on reprisal.
While the AJ concluded that complainant failed to establish a prima facie
case of disparate treatment or disability harassment discrimination or
reprisal, the AJ noted that the agency did, nevertheless, articulate
legitimate, nondiscriminatory reasons for its actions. The AJ concluded
that complainant did not show that the alleged actions of the Company
employees or general customers were linked to the agency. Moreover,
any conflicts complainant had with his co-workers were personality
conflicts which agency management attempted to resolved by keeping the
workers apart. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination or retaliation.
Based on the AJ's conclusion that unlawful discrimination occurred
only with regard to the medical records, the agency was ordered to pay
one-fifth of the complainant's costs inasmuch as the medical records issue
was a small portion of his complaint; $2000 in non-pecuniary compensatory
damages for the anger and emotional distress caused by the commingling
of his medical records with his personnel file; ordered not to retaliate
against complainant for filing this complaint; and ordered to provide
EEO training to managers, supervisors, and employees of the rights and
obligation under the confidentiality provisions of the Rehabilitation Act.
The agency's stated in its final order that it would not implement the
AJ's decision with regard to the issuance of compensatory damages and
filed the instant appeal.
The agency argued on appeal that inadvertently placing records in an
personnel file may rise to the level of a disclosure of the contents
contained within the records, however, that the disclosure itself is
not discriminatory conduct warranting compensatory damages. The agency
argued that nothing in the hearing record indicated this disclosure was
utilized with discriminatory intent, became the basis of discriminatory
activity taken against complainant, or resulted in discriminatory animus
aimed at the complainant. Complainant argued in his appeal that he was
entitled to $125,000 in compensatory damages.
ADA regulations provide for the confidentiality of medical records,
in pertinent part as follows:
Information obtained. . . regarding the medical condition or history
of any employee shall. . . be treated as a confidential medical record,
except that:
(I) 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. 05960585 (September 5, 1997), Short v. Department of
the Air Force, EEOC Appeal No. 01980456 (October 7, 1999). By its terms,
this requirement applies to confidential medical information obtained from
"any employee," and is not limited to individuals with disabilities. See
also EEOC Enforcement Guidance on the Americans With Disabilities Act
and Psychiatric Disabilities (March 25, 1997) at 17 �15. The agency
disclosed medical information pertaining to complainant in a manner that
did not conform to the conditions prescribed in this regulation, and its
act of dissemination constitutes a violation of the Rehabilitation Act.
Compensatory damages may be awarded for past pecuniary losses,
future pecuniary losses, and nonpecuniary losses that are directly or
proximately caused by the agency's intentional discriminatory conduct.
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).<2>
Pecuniary losses are out-of-pocket expenses incurred as a result of the
employer's unlawful action, including medical and other quantifiable
out-of-pocket expenses. Past pecuniary losses are pecuniary losses
incurred prior to the date of the resolution of the damage claim.
Future pecuniary losses are losses that are likely to occur after the
resolution of litigation. Nonpecuniary losses are losses that are not
subject to precise quantification including emotional pain and loss
of health. Id.
The Commission's policy is to make awards for emotional harm consistent
with awards in similar cases. In Weatherspoon v. Department of
Agriculture, EEOC Appeal No. 01966395 (March 3, 1999), the Commission
awarded the complainant $1000, relying on a letter from the complainant
saying that she had experienced anguish, humiliation, and torment in
connection with the agency's discrimination when it failed to promote
her. In Adesanya v. United States Postal Service, EEOC Petition
No. 04980016 (February 19, 1999), the Commission ordered an award of
$1389 in non-pecuniary damages where statements from family members and
co-workers stated that complainant was irritable, could not sleep, and had
a constant headache when the complainant was denied work. In DeMeuse
v. United States Postal Service, the Commission awarded $1500 based on
the complainant's statements alone that he was embarrassed, humiliated,
and had suicidal thoughts due to being harassed based on his disability.
Applying the above legal standards, we agree with the AJ that complainant
submitted sufficient unrebutted evidence to establish that he suffered
emotional harm as a result of the agency's discrimination. The record
contains statements from complainant and his wife describing the effects
that his embarrassment, anger, and stress had on his mental health. We
find that this uncontroverted evidence establishes complainant's
entitlement to $2000 in compensatory damages.
With regard to the AJ's issuance of partial costs, generally, in order
to obtain an award of attorney's fees and costs, the complainant must be
considered a prevailing party. See Texas State Teachers Ass'n v. Garland
I.S.D., 489 U.S. 782 (1989). A prevailing party is one who succeeds
on any significant issue, and achieves some of the benefit sought
in bringing the action. Davis v. Department of Transportation, EEOC
Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
The AJ's allowance of costs focused on the improper disclosure of medical
records claim of discrimination and not the factual allegations in support
of the claim, See EEO MD-110, 5-5, inasmuch as complainant did not prevail
in his specific challenges to agency actions involving harassment.
Therefore, we agree with the AJ find that it would be inappropriate
to give these claims the same weight as the more significant claims
of the case. After careful consideration, the Commission agrees with
the AJ's reduction of costs inasmuch as the medical records issue was
approximately a small fraction of complainant's overall complaint.
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. National Labor Relations Board, 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we REVERSE, in part, the agency's final action.
CONCLUSION
Accordingly, the Commission REVERSES, in part, the agency's final
action which rejected the AJ's finding that the agency violated the
confidentiality of medical records provisions of the Rehabilitation Act
and orders the agency to take remedial action in accordance with the
AJ's decision and the ORDER herein.
ORDER
The agency is ordered to perform the following:
1. The agency shall pay complainant one-fifth of the costs associated with
the filing of this complaint, inasmuch as the AJ found that the medical
records issue was approximately one-fifth of complainant's complaint.
2. The agency shall pay complainant all costs associated with the filing
of the instant appeal.
3. The agency shall pay complainant $2000 in compensatory damages for
the emotional distress caused by the commingling of medical file and
psychiatric records with his personnel file.
4. The agency shall take no retaliatory action against complainant for
having filed this discrimination complaint.
5. The agency shall provide EEO training for managers and supervisors
responsible for the maintenance of records/files in the Spokane facility
at issue herein to ensure they are aware and continue to be aware of
their obligation, responsibilities, and rights under the confidentiality
provisions of the Rehabilitation Act.
6. Consider taking disciplinary action against the employee identified
as being responsible for the discriminatory action. The agency shall
report its decision. 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 5, 2001
__________________
Date
1 The AJ also noted that complainant failed to establish that the
Supervisor had knowledge that complainant suffered from a mental
disability, namely paranoia.
2This guidance is on the Commission's website at www.eeoc.gov.