0120070997
05-22-2008
Danny L. Price, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danny L. Price,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070997
Agency No. 1J626001505
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 3, 2006 final 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.
Complainant alleged that the agency discriminated against him on
the basis of disability (heart disease and high blood pressure) and
harassment/hostile work environment when, on August 29, 2005, he was
harassed by management when he was confronted about his heart condition in
front of his coworkers, thereby constituting a breach of confidentiality
with regard to his medical condition.
Complainant, a full-time regular Laborer Custodian at the Champaign
Processing & Distribution Center, Champaign, Illinois, indicated that
while he was outside smoking a cigarette with a group of three coworkers,
his supervisor approached him and publicly scolded him for smoking while
having heart disease. The supervisor asked complainant if his doctor
knew that he smoked. Complainant had recently requested a reasonable
accommodation for his heart disease that prevented him from mowing the
lawn at the facility.1 Complainant stated that his coworkers were not
aware of his condition. Complainant maintained that the supervisor was
very forceful in his view about the dangers of smoking when complainant
had heart disease and continued to bring the issue up on several
occasions.
According to the record, complainant's supervisor indicated that he made
the statement about complainant smoking because he was concerned for
complainant's health. He also indicated that he told other management
about the incident because those officials were involved in deciding if
complainant's medical condition qualified for a workplace accommodation.
The supervisor was issued a Letter of Warning for violating complainant's
privacy and not treating him with respect.
Following an investigation, which complainant maintains was less than
adequate, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Complainant requested a final agency decision
(FAD). In its FAD, the agency concluded that complainant failed to
show that he was discriminated against or subjected to a hostile work
environment.
Disclosure
The Americans with Disabilities Act2 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. � 1630.14(c)(1); see Shaw v. Department of Transportation, EEOC
Appeal No. 01A30273, March 11, 2004; and Hampton v. United States Postal
Service, EEOC 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 a complainant
in a manner that did not conform to 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.
Under the circumstances in this case, where the supervisor discussed his
view about the dangers of complainant smoking due to his heart disease
in the presence of others, we find that the supervisor disclosed medical
information pertaining to complainant's condition. Indeed, the record
indicates, and the supervisor admits, that he discussed complainant's
medical condition in front of complainant's coworkers.3 The dissemination
of this information constitutes a violation of the Rehabilitation Act
since the medical condition or history of any employee must be treated
as a confidential medical record. Accordingly, we find that a violation
of the Rehabilitation Act has occurred.
Hostile Work Environment
It is well settled that harassment based on an individual's disability
is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under this basis,
complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to unwelcome conduct related to his membership
in that class; (3) the harassment complained of was based on disability;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 987, 903 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. See Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserts that the complained of incidents occurred due to his
disability. For purposes of analysis only, we assume complainant is an
individual with a disability under the Rehabilitation Act. In viewing
the events as a whole, we find that complainant has not established that
the incidents had the purpose or effect of unreasonably interfering
with his work performance and/or creating a hostile work environment.
Therefore, we conclude that complainant failed to establish his claim
of harassment based on disability.
Finally, with respect to complainant's contention that he was not
offered reasonable accommodation,4 we find that there is no evidence in
the record that complainant was ever required to work outside of his
medical restrictions. In fact, the record shows that complainant was
indeed given a workplace accommodation.
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 finding that complainant
failed to demonstrate a hostile work environment. However, we reverse
the agency's final order regarding the medical disclosure and find that
the agency violated the Rehabilitation Act.
ORDER
The agency is ordered to take the following remedial action:
1. Within ninety (90) calendar days of the date this decision becomes
final, the agency shall provide EEO training to the supervisor in question
focusing on the agency's obligation under the Rehabilitation Act to keep
medical information confidential.
2. The agency shall consider taking disciplinary action against the
supervisor responsible for violating the Rehabilitation Act. The agency
shall report its decision to the Commission. 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.
3. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his 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 his 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 Champaign Processing & Distribution
Center, Champaign, Illinois facility 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 (K0408)
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 (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
______05-22-08___________
Date
1 Complainant's medical documentation indicated that he should not work
in the hot sun and that he was unable to work prolonged periods of time
and could not push a lawn mower.
2 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.
3 The supervisor believed that the coworkers were aware of complainant's
condition.
4 We note that the claim of the agency's alleged failure to provide
complainant with a reasonable accommodation was not identified as a claim
by the agency in its FAD. Nonetheless, the agency analyzed the substance
of this claim, and we affirm its finding of no discrimination.
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0120070997
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070997