0120142646
12-07-2016
Lea P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lea P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120142646
Hearing No. 450-2014-00099X
Agency No. 4G-760-0033-13
DECISION
On August 12, 2014, Complainant filed an appeal from the Agency's July 14, 2014, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager, Operations Programs Support at the Agency's Customer Services District facility in Ft. Worth, Texas.
On May 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 19642 when she was subjected to harassment. In support of her claim, Complainant alleged that the following events occurred:
1. On January 22, 2013, Complainant was not allowed to speak during a District staff meeting.
2. On January 28. 2013, she was told that her detail as the Acting Marketing Manager was ending;
3. On January 31, 2013, she was notified the Street Management Coordinator position would no longer report to her;
4. On January 31. 2013, the Acting District Manager made inappropriate comments of a sexual nature about a male coworker;
5. On February 1, 2013, she was excluded from input during a staff meeting and the Acting Manager suggested to the staff that she had attention deficit hyperactivity disorder;
6. On February 21, 2013, she was instructed by the Acting District Manager to use the automated call-in system for any unscheduled absences and to complete a leave form for pay purposes;
7. On March 26, 2013, Complainant was instructed to notify Acting District Manager for any unscheduled leave and not give the message to her subordinate;
8. On March 27, 2013, she was spoken to tersely by the Acting District Manager related to the call-in procedure and her absence.
9. On April 8, 2013, her privacy was violated when sensitive and confidential information was shared with the Acting District Manager after she had a private conversation with the Injury Compensation staff;
10. On May 7, 2013, she was instructed to return from a Biological Detection System (BDS) Exercise by the Acting District Manager stating her travel had not been approved, however, other District staff members were allowed to stay and participate in the exercise.
11. Between May 10 and May 30, 2013, changes were made to the Operations Department affecting her staff and the direct reports; and
12. On an unspecified date she was removed as the Selecting Official for a manager position that reported to her.
Complainant amended the complaint include additional events which she believed constituted harassment on the basis of reprisal for her prior and current EEO Activity when the following events occurred:
13. On or around June 28, 2013, she was admonished by e-mail, with a copy to her peers for cancelling a "Round Up" meeting; and
14. On an ongoing basis, the Acting District Manager has allowed her direct reports to interfere with the management of the complainant's staff and ignore OPRNS reporting processes.
Complainant amended the complaint a second time including additional events which she believed constituted harassment in retaliation for her prior and/or current EEO Activity when:
15. On unspecified dates, other employees incorrectly entered her leave and her leave forms were altered after she had signed them and she was given discussions about her leave forms;
16. On an unspecified date, Complainant was to attend a "Can't Do Nothing" teleconference; and
17. On unspecified dates, she was required to report her leave via e-mail, telephone and the automated call-in system.
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 but subsequently withdrew her request. Consequently, 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 harassment or disparate treatment 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").
Medical Disclosure (Claims 1, 5 and 9)
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. See also EEOC Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities (March 25, 1997) at 17; ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations" (October 10, 1995) at 21-22. 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).
As to claims (1), (5) and (9), Complainant asserted that the Acting District Manager indicated that she has attention deficit hyperactivity disorder without additional information. The Acting District Manager denied the allegations directly when asked about claim (5). However, in response to claim (1), the Acting District Manager noted that the meeting was getting out of control and that Complainant was taking notes. She indicated that there were sidebars by the participants and then, that at some point, the Acting District Manager stated "that I may have beginning signs of ADHD along with [Complainant]" who had to repeat the same thing over and over due to the distractions. Upon review of the record and without any other evidence or support, the Commission cannot find that Complainant supported her claim that the Acting District Manager unlawfully disclosed Complainant's medical information. The Acting District Manager made a comment regarding the actions of the participants affecting her and Complainant because they had to take notes during the meeting. It was not a release of medical information. As such, we conclude that the Acting District Manager did not violate the Rehabilitation Act.
Disparate Treatment (Claims 1, 2, 3, 5, 6, 7, 10, 12, 15, 16, and 17)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
Here, Complainant has alleged that she was subjected to an ongoing pattern of retaliation because she had previously filed a sexual harassment complaint against a former District Manager (not the Acting District Manager at issue here) when she worked in the Dallas District. She asserts that once she moved to the Fort Worth District, the Acting District Manager was aware of that complaint and engaged in retaliatory action. This is sufficient to raise a prima facie inference of retaliatory animus.
However, the established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the responsible management officials have provided legitimate, nondiscriminatory reasons for the disputed actions. As to the claims (1) and (5), the Acting District Manager indicated that at the meeting she told Complainant that she's "got this" and that meetings were totally out of control with sidebars going on and participants not paying attention. The Acting District Manager noted that, in response to claim (2), that Complainant was performing her regular assignment in addition to the Acting Marketing Manager. They noted that the "Wait Time in Line" indicators were not being achieved and the Agency needed someone to take on the position as a full time position. Also with respect to claim (3), the position was removed from reporting to Complainant because the results were not there.
In claims (6) and (7), Complainant was instructed to use the automated call-in system. The Acting District Manager asserted that she did not know that Complainant had called in until her subordinate (Subordinate) would show up in Complainant's place. In claim (17), Complainant indicated that she was required to report her leave. Again, the Acting District Manager required employees to report planned leave so that she can ensure coverage and deadlines being met.
As to claim (10), the Acting District Manager averred that Complainant and other employees were attending a drill out of the office and she became concerned about the costs to the office. She called Complainant to instruct the staff to return to the office due to needs of the office. In claim (12), Complainant asserted that she was removed as a selecting official. The Acting District Manager did not remove Complainant, but stated she was informed by Human Resources that a decision was needed immediately. Since Complainant had not returned to work, the Acting District Manager had to take action to fill the vacancy.
In claim (15), Complainant asserted that her leave was entered incorrectly. However, the record shows that the Manager of Finance corrected Complainant's pay. Finally, as to claim (16), Complainant asserted that she was scheduled to attend a "Can't do Nothing" telecom. The Acting District Manager indicated that after several emails between Human Resources and management, nothing was accomplished. As such, she set up a meeting with all involved and entitled the meeting "Can't Do Nothing" because something needed to be accomplished.
Based on our review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for the actions listed by Complainant which constituted disparate treatment. Further, we note that Complainant has not shown that these events occurred because of her prior or current EEO activity. Therefore, we conclude that Complainant has not established that she was subjected to unlawful retaliation.
Harassment
It is well-settled that harassment based on an individual's prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
To prove her harassment claim, Complainant must establish that she 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 - in this case, her prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Upon review of the record as a whole, we find that Complainant has not shown that the alleged actions occurred because of her protected EEO activity. As such, we find that Complainant failed to show that she was subjected to unlawful retaliatory harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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. 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
December 7, 2016
__________________
Date
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.
2 Complainant originally alleged discrimination on other bases in addition to her prior EEO activity, including her national origin (Mexican American). However, on appeal she only asserts her retaliation claim.
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