Cynthia L. Trisch, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 13, 2010
0120093060 (E.E.O.C. Jan. 13, 2010)

0120093060

01-13-2010

Cynthia L. Trisch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cynthia L. Trisch,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120093060

Agency No. 4H-320-0031-06

DECISION

On July 14, 2009, complainant filed an appeal from the May 9, 2009

final agency decision concerning his 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.

BACKGROUND

During the relevant period, complainant worked as the Postmaster at the

agency's post office in Branford, Florida. Complainant filed a formal EEO

complaint alleging that the agency discriminated against her on the basis

of disability (stress) when management disclosed her confidential medical

information unnecessarily and, after she returned from extended sick leave

in February 2005, subjected her to hostile work environment harassment.

Following an investigation of complainant's claims and her request for a

final agency decision, the agency issued a decision dated July 20, 2006.

In its July 2006 final decision, the agency found that complainant failed

to establish discrimination as alleged. Subsequently, complainant

filed an appeal with this Commission, which was docketed as Trisch

v. U.S. Postal Service, EEOC Appeal No. 0120064917 (February 12, 2009).

In EEOC Appeal No. 0120064917, the Commission affirmed the agency's

finding of no discriminatory hostile work environment, but remanded the

issue of breach of medical confidentiality to the agency for supplemental

investigation and subsequent decision.

Briefly, the supplemental investigation indicated that complainant alleged

that in December 2004 she submitted a medical report to her the Senior

Manager of Postal Operations (S1), who kept it in a filing cabinet in his

office rather than forwarding it to the medical unit. Later, she asserted

that S1 gave access to the medical report to the manager who took over as

Acting Manager of Postal Operations (S2). Complainant also alleged that

when her union representative attempted to discuss a matter regarding

complainant with S2, S2 informed the representative that complainant was

on leave "due to stress." Complainant requested compensatory damages.

In response to complainant's allegations, S1 stated that he could

not recall if he ever was aware of complainant's medical condition or

received medical documentation from her. He stated that 118 Postmasters

reported to him so it was unlikely that he knew why any one of them was

on sick leave. S2 stated that complainant informed him that she opposed

the placement of her name on a postmaster rankings list for the time

she was out on an extended leave. He said he asked S1 about the matter

and learned that complainant had been out on sick leave for a period

of several months shortly before he took over as the Acting Manager

of Postal Operations. S2 stated that as Acting Manager he also became

aware of complainant's Office of Workers' Compensation Programs (OWCP)

claim citing job-related stress. S2 stated that he was not given any

specific information about complainant's medical condition, only that

she had filed an OWCP claim based on stress.

With regard to the conversation with the union representative, S2

averred that the representative called him on complainant's behalf to

discuss complainant's concerns about having her extended absence taken

into account in the postmaster rankings report. He stated that during

the conversation, they discussed the fact that complainant had been

absent from work for several months in connection with a job-related

stress claim. S2 recalled that the union representative seemed familiar

with complainant's situation. S2 denied discussing any specific medical

information with the union representative.

The union representative stated that complainant contacted her regarding

a problem she was having with S2. According to the union representative,

complainant was concerned about a spreadsheet S2 had developed where

he ranked the Postmasters he supervised by various scores. Complainant

asked the union representative to speak with S2 about removing her name

because the rankings were unfair due to her extended absence from her

Postmaster position. The union representative stated that during the

course of the conversation, S2 stated that he knew complainant had been

out on stress-related leave. The union representative, however, said

that he did not elaborate on any specifics of complainant's medical

condition or state how he learned about it. The union representative

stated that she was not aware, prior to this conversation, that the

reason for complainant's absence from the office was stress.

In its subsequent decision, dated May 9, 2009, the agency found that

complainant's assertion was merely speculative; and that complainant

failed to show that S1 disclosed information to S2 unlawfully or that S2's

use of the term "job stress" to a person acting on complainant's behalf

violated 29 C.F.R. � 1630.14(c)(1). Accordingly, the agency concluded

that no violation of the law occurred. The instant appeal followed.

ANALYSIS AND FINDINGS

The Rehabilitation Act provides that information obtained regarding

the medical condition or history of any employee shall be treated as a

confidential medical record and there are only limited exceptions to this

regulation. 29 C.F.R. � 1630.14. By its terms, this requirement applies

to confidential medical information obtained from "any employee," and is

not limited to individuals with disabilities. Hampton v. United States

Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000). Although

not all medically-related information falls within this provision,

documentation or information of an individual's diagnosis or symptoms is

medical information that must be treated as confidential except in those

circumstances described in 29 C.F.R. Part 1630. See Hampton, supra;

see also EEOC Enforcement Guidance on the Americans with Disabilities

Act and Psychiatric Disabilities (March 25, 1997) at 17, �15.

Alleged Disclosure Between S1 and S2

After a thorough review of the record, the Commission determines that

the weight of the evidence does not support complainant's contention

that S1 provided S2 with access to the medical report submitted to him by

complainant. Rather, it appears that when S2 took over as complainant's

supervisor and complainant raised the issue of her extended absence with

him, he asked S1 about it and received verification that complainant had

been out of the office for several months on sick leave without further

elaboration as to the specifics of her medical condition. S2 later

learned, in his capacity as a manager, about complainant's workers'

compensation claim for job-related stress. Under these facts, we find no

violation of the confidentiality responsibilities of agency management.

See generally, 29 C.F.R. � 1630.14(c)(1).

Alleged Disclosure Between S2 and Union Representative

With regard to the second alleged disclosure, the weight of the evidence

of record established that complainant asked the union representative

to speak to S2 on her behalf concerning her extended absence from work

and how it should be viewed in his monthly Postmaster's ranking report.

During the course of this conversation, authorized by complainant,

it is undisputed that S2 stated that complainant's absence was due to

stress without revealing any further medical information. In this

context, we find credible S2's assertion that he believed that the

union representative was well aware of the reason for complainant's

absence. Under the facts of the instant case, where the union

representative had been authorized by complainant to speak with S2 about

her sick leave and no specific condition or diagnosis was revealed, we

find S2's comment was not a per se violation of the Rehabilitation Act.

Accordingly, the agency's final decision is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

January 13, 2010

__________________

Date

2

0120093060

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120093060