Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Sep 18, 2015

01-2013-3363-0500 (E.E.O.C. Sep. 18, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120133363

Hearing No. 490-2011-00170X

Agency No. 1G-721-0010-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 27, 2013 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing and Distribution Center in Little Rock, Arkansas. Complainant filed
a grievance regarding a 14-Day Suspension and a Notice of Removal, and attended an
arbitration hearing on November 9, 2010. The Agency’s Labor Relations Manager (LRM) and
Labor Specialist (LS) were present at the hearing. During her arbitration hearing,
Complainant disclosed medical information about her narcolepsy diagnosis. After the
arbitrator issued a decision, management met with Complainant on November 30, 2010, to
discuss her return to work. Complainant informed officials that she would need
accommodation for her medical condition to return to work. Complainant was instructed to
return to work on December 10, 2010, and to submit medical documentation in support of her
request for accommodation.

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On December 3, 2010, the Attendance Control Manager informed management officials via
email that Complainant was being nominated to the District Reasonable Accommodation
Committee (DRAC) based on her request for accommodation for her medical condition to
return to work. The Attendance Control Manager did not disclose any information about
Complainant’s condition in the email. The Distribution Operations Manager (M1) received
this email.

Complainant attempted to return to work on December 10, 2010; however, she had failed to
submit the requested medical documentation and had not yet met with the DRAC. As a result,
M1 informed Complainant that she would not be allowed to work and had the supervisor on
duty escort her out of the building.

On February 24, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of disability when on an unspecified date her medical
condition was improperly disclosed and, on December 10, 2010, management would not let
her return to work.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on August 19, 2013.

In the decision, the AJ determined that Complainant alleged that the Agency improperly
disclosed her medical information to M1 which resulted in her not being allowed to return to
work on December 10, 2010. The AJ found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Namely, Complainant was sent home until she
provided additional information about her accommodation request. Further, Complainant
disclosed medical information to management officials during an arbitration hearing. In
subsequent meetings geared toward implementing the arbitration decision, Complainant made
representations that she was unable to return to work without an accommodation. The record
evidence revealed that M1 and other management officials were advised by the Attendance
Control Manager that Complainant was being nominated to the DRAC because of her
accommodation request. Therefore, the disclosure was reasonable in that M1 was a person
with a legitimate “need to know” about Complainant’s medical information.

1 The Agency dismissed an amendment to the complaint as untimely pursuant to 29 C.F.R. §
1614.107(a)(2). Complainant attempted to challenge the Agency’s dismissal before the AJ,
and the AJ declined to reinstate the dismissed claim. On appeal, Complainant challenges the
AJ’s failure to reinstate the dismissed claim. The Commission notes that the AJ has broad
discretion in determining whether to accept additional claims. After a review of the record,
the Commission finds that the AJ was within her discretion to not allow Complainant to amend
her complaint.
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The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination as alleged. The Agency subsequently issued a final order fully implementing
the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as material facts remain in dispute. Specifically, Complainant claims that M1 told
her that he learned of her disability from “Attendance Control and Human Resources.”
Further, Complainant challenges the AJ’s finding that M1 had a legitimate “need to know”
about her medical information. Accordingly, Complainant requests that the Commission
reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Improper Medical Disclosure

The Americans with Disabilities Act of 1990 (ADA)2

2 The Rehabilitation Act was amended so that the standards under Title I of the ADA would be
applied to employment discrimination cases under the Rehabilitation Act.
requires employers to treat as
confidential all information obtained regarding the medical condition or history of an
employee. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14(b)(1). Such
information includes any medical information voluntarily disclosed by an employee. See
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the Americans with Disabilities Act (ADA), No. 915.002, General Principles
section in Background discussion (July 27, 2000). Improper Agency disclosure of such medical
information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv.,
EEOC Request No. 05960585 (Sept. 5, 1997). The Commission has articulated limited
exceptions to the Rehabilitation Act's confidentiality requirements, and Agency officials may
share confidential medical information about an employee with other Agency officials on a
“need-to-know” basis, if doing so is necessary to ensure compliance with the Rehabilitation
Act. See Skarica v. Dep't of Homeland Sec., EEOC Appeal No. 0120073399 (Mar. 5, 2010)
(finding that the Agency did not violate the confidentiality provisions of the Rehabilitation Act
when Complainant's Supervisor consulted with a personnel official and agency physician to
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ascertain how to accommodate complainant's medical condition, because these officials had a
legitimate “need to know” Complainant's medical information).

Based on the circumstances of this case, the Commission does not find that any prohibited
disclosure of medical information occurred. The record indicates that Complainant first
revealed details about her medical condition during an arbitration hearing in which LRM and
LS were in attendance. ROI, at 161, 167. Both denied disclosing any medical information
after the hearing, and Complainant has presented no evidence of any disclosure. After the
arbitration decision, Complainant met with management officials to discuss her return to duty.
Id. at 163. During the meeting, Complainant indicated that she had a medical condition that
needed accommodation, and Agency officials informed Complainant that she would need to
submit medical documentation in support and go before the DRAC prior to returning to work.
Id. at 165, 175. The Attendance Control Supervisor then informed officials, including M1,
that Complainant had been nominated for the DRAC based on her request for accommodation.
ROI, Ex. 2. No medical information was disclosed in the email. Furthermore, Complainant
has presented no evidence rebutting the AJ’s finding that M1 had a legitimate “need to know”
that Complainant was being referred to the DRAC. Finally, M1 affirmed that she learned
from Complainant that she had a sleep disorder, but noted that Complainant had already
disclosed it to her co-workers and they had informed her. ROI, at 173. Thus, the
Commission is unable to find that Complainant’s confidential medical information was
improperly disclosed or otherwise accessed improperly. Accordingly, the Commission finds
that Complainant failed to establish that the Agency unlawfully disclosed her confidential
medical information as alleged.

Disparate Treatment

Further, with respect to Complainant’s claim that she was not allowed to return to work, the
Commission notes that 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 (1973). Complainant must initially establish a prima
facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the
facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, the Commission agrees with the AJ that assuming arguendo that she
established a prima facie case of discrimination, Complainant failed to present evidence to
rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, M1
affirmed that Complainant was sent home on December 10, 2010, because she had indicated
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that she had a medical condition that required accommodation, but she had not provided the
requested medical documentation in support. ROI, at 175. S1 stated that Complainant had
been given instructions concerning submitting the necessary medical documentation and the
DRAC process; however, she attempted to return to work without going through the process to
identify what accommodation was needed. Id. at 24, 174. As a result, S1 had Complainant
escorted from the building. Id. at 174.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's disability was a factor in any of the Agency's actions. At all
times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the
evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
as alleged.3

CONCLUSION

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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:

3 To the extent that Complainant believes that she was denied reasonable accommodation, the
Commission notes that when an individual's disability or need for reasonable accommodation
is not obvious, and the individual fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 6 (as
revised Oct. 17, 2002). Based on Complainant’s failure to provide the requested medical
documentation, the Commission finds that the Agency did not violate the Rehabilitation Act by
not allowing Complainant to return to work.
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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, 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 (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
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time limits for filing a civil action (please read the paragraph titled Complainants 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

September 18, 2015
Date