01A30273
03-11-2004
Angela Shaw, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Angela Shaw v. Department of Transportation
01A30273
March 11, 2004
.
Angela Shaw,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A30273
Agency No. OST-01-009
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant was hired in January 2000 as an Equal
Opportunity Specialist at the agency's Departmental Office of Civil
Rights in its San Francisco Regional Office. Complainant sought EEO
counseling and subsequently filed a formal complaint on October 3, 2001,
alleging that her supervisor, the Supervisory Equal Employment Opportunity
Specialist - Regional Director (the Director), discriminated against her
and subjected her to a hostile work environment on the bases of race
(African-American), disability (diabetes with complications including
advanced periodontal and degenerative bone disease). She claimed that
the following events occurred:
the Director denied a reasonable accommodation such as an alternative
work site;
the Director changed her annual leave requests to sick leave;
the Director ordered her to take the Director's personal prescription
medication for complainant's medical condition; and
the Director disclosed confidential medical information to persons
without a legitimate need to know.
Complainant then asserted that the events culminated in her forced
resignation on June 3, 2001, from her position and her transfer to
another agency for a lower level position. The complaint was accepted for
investigation. Complainant then amended her complaint to include claim
(5) alleging discrimination on the basis of reprisal (for her current
EEO activity) when the Director discussed complainant's EEO complaint
and medical information with individuals within the EEO community.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to show she
was discriminated against and subjected to a hostile work environment
as alleged in her complaint. As to complainant's claim of a denial
of a reasonable accommodation, the agency assumed, without finding,
that complainant is an individual with a disability. The agency then
determined that complainant was responsible for the breakdown of the
interactive process to find an appropriate accommodation. Therefore,
the agency concluded that it did not violate the Rehabilitation Act.
As to complainant's claim of a hostile work environment, the agency
determined that complainant did not establish her claim. To the extent
complainant contends that she was constructively discharged, the agency
found that it was complainant's desire to leave the San Francisco office
rather than the alleged discrimination or harassment that led her to
take a position in Los Angeles with another agency.
Complainant also claimed that the agency's actions constituted racial
discrimination. The agency found that complainant did not show that
incidents were severe or pervasive enough to establish a claim of
harassment. Further, the agency noted that complainant did not show
that she was constructively discharged for the same reasons noted on
the basis of disability. Finally, as to complainant's amended issue,
the agency found that complainant did not establish that the Director
retaliated against her.
On appeal, complainant contends that she is a Type II Insulin Dependent
Diabetic and provides other information regarding impairment and its
effects on major life activities. She argues that the agency's decision
is flawed in that the Director, not complainant, was the reason for
the breakdown in the interactive process. She claims that the Director
failed to recognize that her request for leave in April was so that she
could gather additional medical information to support her request for
a reasonable accommodation. Complainant also asserts that it was the
Director who did not contact upper management or the agency's Disability
Resource Center to obtain approval of her request to work from home.
Complainant also points to her rebuttal affidavit to support her claims
that the agency violated the Rehabilitation Act and Title VII.
The agency requests that we affirm its FAD. The agency reargues that
if complainant was a qualified individual with a disability, she has
not shown that the agency failed to provide her with a reasonable
accommodation. The agency asserts that its decision correctly found
that complainant did not demonstrate that the agency's actions were
a violation of the Rehabilitation Act. Further, complainant did not
show that the actions rose to the level of a hostile work environment.
Finally, the agency claims that complainant did not establish that
the Director retaliated against her for filing the instant complaint.
Accordingly, the agency asks the Commission to affirm its FAD.
ANALYSIS AND FINDINGS
Disability Based Discrimination
Disclosure
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. � 16130.14(c)(1); see Hampton v. United States Postal Serv.,
Appeal No. 01A00123 (April 13, 2000). By its terms, the requirement
applies to confidential medical information from any employee and is
not limited to individuals with disabilities. See Hampton, supra.;
see also EEOC Enforcement Guidance on the Americans With Disabilities
Act and Psychiatric Disabilities (March 25, 1997) at question 15;
EEOC Enforcement Guidance: Disability Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act
(July 27, 2000);
ADA Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations (October 10, 1995).
If the agency discloses medical information pertaining to complainant
in a manner that did not conform with this regulation, then its act of
dissemination would constitute a violation of the Rehabilitation Act.
We note that there is no requirement of a showing of harm beyond the
violation. Hampton, supra.
The record indicates that complainant's work site was comprised of six
employees, namely the Director, complainant and four other co-workers.
In the case at hand, complainant alleged in claim (4) that the Director
informed her co-workers of her medical condition. In particular,
complainant indicated that two co-workers, CW1 and CW2, were made aware of
her condition through the Director. The Director stated that she informed
CW1 of complainant's use of sick leave because CW1 was in charge of time
and attendance issues. Further, the Director told CW1 that complainant
may be telecommuting in conjunction with CW1's administrative duties.
She also had CW1 start researching the codes and necessary process
for recording complainant's work from home. CW1 did not indicate
that she was aware of complainant's actual condition but that she was
aware that complainant needed to use sick leave and may telecommute.
Based on the affidavits, we find that the Director only informed CW1 of
complainant's use of sick leave and of the possibility that complainant
would be working from home to the extent CW1 needed in order to perform
her administrative duties. Therefore, we find that the Director did
not disclose confidential medical information to CW1.
As for CW2, the Director averred that one day she mentioned to either
CW2 or CW3 that complainant has diabetes. CW2 stated in her affidavit
that in spring 2001, the Director told her that complainant has been
diagnosed with diabetes. Upon review, the record clearly indicates that
the Director improperly disclosed to CW2 complainant's condition. We find
that the Director's disclosure was a violation of the Rehabilitation
Act's prohibition against the release of confidential medical information.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
For the purposes of analysis, we assume complainant is an individual
with a disability.
In claim (1), complainant asserted that the agency denied her a
reasonable accommodation. Due to complainant's condition, she was
required to undergo surgery to remove all of her remaining teeth.
In March 2001, complainant asked to work from home in Los Angeles while
she had her teeth extracted. The Director indicated that she did not
have the authority to grant complainant's request to work from home
for eleven weeks. She asked complainant to provide supporting medical
documentation including why complainant could not come in to the office
for that period of time. When complainant provided such documentation,
the Director would pass the request on to her supervisor. Complainant
gave the Director a note but it did not explain why complainant needed
the specific accommodation complainant was requesting. The Director
informed her that she needed more information to forward the request.
The Director averred that complainant did not give her any further
information nor did she raise the issue again.
Complainant claims that she contacted the DRC. The DRC informed her that
it was not the correct office to raise such a matter and referred her
back to the Director. Complainant admitted that she did not follow up
with the Director. On appeal, complainant asserted that the Director was
the reason for the breakdown of the interactive process. In particular,
complainant points to her leave request for the week of April 16, 2001.
The Director requested that complainant change the dates of the request
because she was close to the end of a rating period. In her appeal
statement, complainant argues that she was going to get the supporting
documentation during the April 16th visits to her physician. Therefore,
she contends that the denial of the April leave by the Director halted
the interactive process.
The record contains e-mails between complainant and the Director regarding
the leave request for April 2001. At no point does complainant inform
the Director that the appointments were in order to arrange the surgery
or to gather more specific information in support of her reasonable
accommodation request. Therefore, complainant has not shown that the
Director asked for complainant to change her appointment in order to delay
granting complainant's request for reasonable accommodation. Upon review,
we find that complainant ended the interactive process by failing to
provide the agency with sufficient information to support her need for
the requested accommodation. Accordingly, we conclude that complainant
has not established that the agency violated the Rehabilitation Act.
Disparate Treatment
Complainant also alleged disparate treatment on the bases of race
and disability regarding issues (2) and (3) and on the basis of
retaliation regarding issue (5). A claim of disparate treatment based
on indirect evidence is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). 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.
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 Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the 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
Center v. Hicks, 509 U.S. 502 (1993).
This 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
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency provided legitimate, nondiscriminatory reasons for issues (2),
(3), and (5). As to the issue of changing annual leave to sick leave,
the Director averred that, during the relevant time, she was under the
erroneous impression that if an employee is sick, they must take sick
leave and not annual leave. For that reason, when complainant requested
annual leave when she was not feeling well, the Director changed the leave
to sick leave. Further, as to complainant's claim that the Director
ordered her to take medication, the Director indicated that she kept
medication in her office. When an employee indicated that they were
not feeling well, she offered some of the medication she had on hand.
The Director indicated that such was the case with complainant. Finally,
as to the retaliation claim, when the Director was informed that the
Investigator was to conduct interviews regarding the complaint at hand,
she notified the others within the office that they needed to make
themselves available.
Finding that the agency provided legitimate, nondiscriminatory reasons,
the burden shifts to complainant to establish that the agency's reasons
were pretext. Upon review, we find that complainant failed to do so.
Hostile Work Environment
It is well-settled that harassment based on an individual's race and
disability 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, the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related
to her membership in those classes; (3) the harassment complained of
was based on race and/or disability; (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); Flowers v. Southern
Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General
Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (March 8, 1994).
As to complainant's claim of harassment based on race, upon review, we
find that complainant failed to show that the alleged incidents occurred
based on her race. Complainant also asserted that the incidents occurred
due to her disability. For purposes of analysis, we assume complainant
is an individual with a disability. In viewing the events as a whole,
complainant has not established the incidents had the purpose or effect
of unreasonable interfering with her work performance and/or creating a
hostile work environment. Therefore, we conclude that complainant failed
to establish her claim of harassment based on race and/or disability.
Constructive Discharge
Constructive discharge occurs when an employer deliberately renders an
employee's working conditions so intolerable that the individual is forced
to resign from his/her position. Constructive discharge only occurs
when the agency's actions were taken with the intention of forcing the
employee to resign. The Commission has established three elements which
complainant must prove to substantiate a claim of constructive discharge:
1) a reasonable person in complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) complainant's resignation
was caused by the intolerable working conditions. See Taylor v. Army &
Air Force Exchange Serv., EEOC Request No. 05900630 (July 20, 1990);
Perricone v. United States Postal Serv., EEOC Request No. 05900135 (June
11, 1990). Upon review, we find that complainant has not shown that
the working conditions were such to establish a claim of constructive
discharge.
CONCLUSION
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 affirm the FAD as to
issues (1), (2), (3), and (5). However, we reverse the FAD and find
that the agency violated the Rehabilitation Act regarding claim (4).
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within 120 calendar days of the date this decision becomes final, the
agency shall provide EEO training to the Director focusing the agency's
obligation under the Rehabilitation Act to keep medical information
confidential.
The agency shall consider taking disciplinary action against the
Director responsible for violating the Rehabilitation Act. 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.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of her claim for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice. The
agency shall complete the investigation on the claim for compensatory
damages within forty-five (45) calendar days of the date the agency
receives complainant's claim for compensatory damages. Thereafter, the
agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco District Office copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
March 11, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which
found that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of Transportation, San Francisco District Office, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of Transportation, San Francisco District Office,
has been ordered to remedy an employee affected by the Commission's
finding that the agency violated the Rehabilitation Act by disclosing
confidential medical information. As a remedy for the discrimination,
the agency was ordered to consider discipline for the management
official involved, to provide training to the management official, and to
determine the affected employee's entitlement to compensatory damages.
The Department of Transportation, San Francisco District Office, will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The Department of Transportation, San Francisco District Office, will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614