0120122388
11-09-2012
Sharon L. Halstead, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Sharon L. Halstead,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120122388
Agency No. FBI-2009-00228
DECISION
On May 15, 2012, Complainant filed an appeal from the Agency's April 17, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant did not established that she had been subjected to a hostile work environment based on her sex and in reprisal for opposing discrimination, and did not established that her medical information had been improperly disclosed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Analyst at the Agency's Federal Bureau of Investigation, Counterterrorism Division, in Washington, D.C. On June 12, 2009, Complainant filed an EEO complaint alleging that the Agency:
1. discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity arising under Title VII when, on or about November 14, 2008, and November 15, 2008, her supervisor made inappropriate and offensive comments regarding her coworker's vasectomy and later angrily berated her in front of her coworkers when she opposed these comments; and she believed her opposition may have affected his responses to survey questions regarding her performance as an analyst; and
2. violated the Rehabilitation Act when, during the week of November 15, 2008, she believed that the Unit Chief divulged personal information concerning sick leave she had taken to her supervisor.
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 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).
In its final agency decision, the Agency found that Complainant had been assigned to her work unit since 2005. The Supervisory Special Agent (Supervisor) became Complainant's supervisor in August 2007. The Supervisor testified that he and Complainant had performance-related and behavior problems dating to this time. The Unit Chief confirmed that Complainant and the Supervisor had a "difficult supervisory-subordinate relationship." Complainant testified that the Supervisor "had a history of telling off-color jokes" in the work area which she found offensive, but to which she generally did not raise objections. On November 14, 2008, Complainant overheard the Supervisor making jokes and comments with another of her coworkers (CO-1) about the vasectomy that another colleague (CO-2) had just had. Complainant testified that the jokes had been occurring over the course of the week and had grown worse over time. She claimed that she heard the Supervisor state to CO-1 that since CO-2 "has been snipped, he was a woman now and would not work as hard." Complainant decided that on this occasion she needed to let the Supervisor know just how offensive she found his comments to be, so she walked over to his cubicle and told him that the comments about CO-2 were "offensive and inappropriate for the workplace."
After Complainant returned to her cubicle, she testified that the Supervisor approached her, was angry, and, she testified, "yelled at me, stating that he was not talking to me when he made the comment" and that he meant that CO-2 "could no longer make babies." She replied that she still found his comments to be offensive and inappropriate. Complainant testified that the Supervisor's confrontational attitude made her uncomfortable and that she felt "threatened" so she decided she needed to raise the matter with the Unit Chief.
The Supervisor did not deny making jokes about CO-2's surgery and stated that numerous other coworkers also made jokes about the vasectomy. He testified that after Complainant approached him to complain on November 14, 2008, he apologized and stated that the comment was not directed at her. After she returned to her cubicle, the Supervisor stated that he thought about the encounter, and then decided to discuss it further with Complainant, which is why he then approached her cubicle. He testified that he was "emphatic" when he told Complainant that his comments were "made during a private conversation and had nothing to do with her."
The next day, November 15, 2008, the Supervisor continued to make comments about CO-2's vasectomy, including to CO-2 upon his return to the office, referencing CO-2's gender and his "balls." Complainant again brought the matter to the Unit Chief's attention.
Complainant claimed that on November 15, 2008, the Supervisor completed a survey on Complainant's performance was an Analyst, and she was concerned that the encounter over the comments may have biased his feedback on the performance survey. The Supervisor denied that the incident would have had any effect on his feedback on Complainant's performance survey.
Late in the afternoon of November 15, 2008, the Supervisor approached Complainant in her cubicle, apologized to her, and stated that he "did not realize that I was having a difficult home life and a different situation." After Complainant left the office, she became concerned that the Unit Chief had shared some of her personal medical information with the Supervisor, which she felt explained the substance of his apology to her. The Supervisor testified that the Unit Chief had talked to him about the Complainant's complaints about the comments, and that the Unit Chief had informed him of the general substance of Complainant's health issue, which is why he apologized to her. The Unit Chief denied in his affidavit that he had revealed any medical information about Complainant to the Supervisor. The Unit Chief also testified, relative to Complainant's performance, that soon after the incidents, he represented Complainant at the Intelligence Analyst promotion board and "was instrumental in helping [Complainant] secure a promotion to the GS-13 pay grade." As of December 1, 2008, Complainant moved to a different Unit in the Division, and no longer worked for the Supervisor.
The Agency found that Complainant had not established a prima facie case of hostile work environment based on sexual harassment or in retaliation for opposing discriminatory behavior. It found that Complainant and her Supervisor had a difficult relationship and that her Fiscal Year 2008 performance evaluation (delivered September 29, 2008) was lower than the previous year's. The Agency found that it was undisputed that the Supervisor had made the comments and jokes about CO-2's vasectomy, and that Complainant could not help overhearing the comments the Supervisor made to CO-1 because the work space was configured with adjoining cubicles, where there should have been a lowered expectation of privacy. It also found that Complainant was offended by the comments and jokes made by the Supervisor. However, the Agency found that Complainant had not shown that the Supervisor's actions, in the form of the comments or the confrontation about the comments, were sufficient to alter the conditions of her employment or to create an abusive work environment. It found that the Supervisor apologized for the comments following his discussion with the Unit Chief, and that Complainant did not report any further problems. It found that there were no adverse effects on her employment from any performance survey the Supervisor may have completed on November 15, 2008, and that the Unit Chief testified that he was supportive of Complainant obtaining a promotion soon after to a higher grade and different Unit. Finally, the Agency found that the evidence did not support a finding that Complainant's sensitive medical information had been inappropriately disclosed to the Supervisor by the Unit Chief.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant thereafter filed the instant appeal.
CONTENTIONS ON APPEAL
In her statement in support of her appeal, Complainant argued that the Agency's analysis did not place enough emphasis on the chilling effect and inappropriate nature of the decision of the Supervisor to confront Complainant in her workspace after she had complained about his comments. She also argued that the Agency ignored the Supervisor's testimony that the Unit Chief had discussed her medical information with the Supervisor. The Agency submitted a brief in opposition to Complainant's appeal in which it urged the Commission to affirm its decision.
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. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the complainant's statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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. 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
We find, based on the facts as found in the record and the Agency's final decision1, that Complainant has not established a prima facie case of a hostile work environment on the bases of her sex or in reprisal for protected EEO activity. Complainant has shown that she is a member of the protected groups by virtue of her sex, and her opposition to the Supervisor's inappropriate comments in the workplace. She testified that she found that comments and jokes about CO-2's vasectomy to be unwelcome and that she notified the Supervisor that his behavior was unwelcome. However, we do not find that the Supervisor's behavior had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. The inappropriate comments made by the Supervisor, as detailed in this record, are not severe or pervasive such that a hostile work environment was created. Although Complainant alluded to the Supervisor having a history of making "off color" remarks, there is no evidence in this record as to what those remarks were or when they occurred. While we agree that the Supervisor's comments were inappropriate for the workplace, we do not find that those comments rise to the level of severity necessary to find that Complainant was subjected to a legally hostile work environment.
As to Complainant's claim that the Unit Chief divulged medical information in violation of the medical confidentiality provisions of the Rehabilitation Act, we find that Complainant has not established that a violation occurred. The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C.� 791(g)); see also 29 C.F.R. � 1614.203(b).2 Generally, medical information must be kept confidential. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the American with Disabilities Act ("Guidance"), Notice No. 915.002 (rev. Oct 17, 2002). The limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; 2) first aid and safety personnel may be told if the disability might require emergency treatment; 3) government officials investigating compliance with the ADA must be given relevant information on request. See Guidance, fn. 111.
There is contradictory evidence as to whether the Supervisor was made aware of Complainant's medical information through the Unit Chief or through office gossip, as the Agency's final decision concluded. Without the benefit of a credibility finding from an EEOC Administrative Judge following a hearing, we have no way of resolving the discrepancy between the statements of the Supervisor and the Unit Chief. Therefore, we cannot conclude that the Unit Chief revealed Complainant's medical information in violation of the Rehabilitation Act. We caution the Agency, however, to ensure that its personnel are aware of and observe the confidentiality provisions the ADA and Rehabilitation Act.
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 and its finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 9, 2012
Date
1 We note that, although Complainant contests the facts as found in the Agency's final decision, she did not request a hearing before an Administrative Judge, who might have resolved any discrepancy by rendering credibility determinations as regards the testimony of witnesses.
2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADA-AA), which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. We note, in any event, that the ADA-AA did not alter the existing confidentiality provisions of the ADA and Rehabilitation Act.
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0120122388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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