0120083124
09-11-2008
Francine M. Richards, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Francine M. Richards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083124
Agency No. 4F920005808
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 16, 2008, dismissing 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female), disability (degenerative disc
disease), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when: (1) she was told she was no longer
assigned to the Sorrento Valley Post Office, (2) management attempted
not to assign her to route 2116, (3) she was informed that management
was watching her, (4), she saw a supervisor open a letter that was not
addressed to him, (5) when she reported to work on April 23, 2008, she
was told a supervisor was upset about the opt sheet and route 2118 that
she had bid on, and (6) management discussed her medical restrictions
and EEO meeting on the workroom floor with other carriers. Complainant
also raised four other claims (7-10) involving incidents that occurred
between August 31, 2007 and March 18, 2002.
As an initial matter, we affirm the dismissal of claims 1-5 pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim.. Complainant has
not alleged facts that show she was aggrieved - she was not reassigned and
was not denied the opportunity to work routes 2116 and 2118. Further,
we affirm the dismissal of claims 7-10 for untimely EEO counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). With respect to claims
7-10, the last incident occurred in August 2007 and complainant did not
contact the EEO counselor until February 8, 2008, well beyond the 45-day
limitation period.
Regarding claim 6, however, the Commission finds complainant has stated
a viable claim of reprisal, as well as a violation of the Rehabilitation
Act. In claim 6, complainant alleges that management improperly revealed
information about her EEO claims to her coworkers on the workroom floor.
This is sufficient to state a viable claim of reprisal that warrants
further investigation. See EEOC Compliance Manual, No. 915.003 (May 20,
1998).
Further the agency is expected to keep an employee's medical
information confidential. Specifically, 29 C.F.R. � 1630.14(c)(1)
provides, in pertinent part, that: "Information obtained... regarding
the medical condition or history of any employee shall ... be treated
as a confidential medical record, except that: (i) [s]upervisors and
managers may be informed regarding necessary restrictions on the work
or duties of the employee and necessary accommodation." By its terms,
this requirement applies to confidential medical information obtained from
"any employee," and is not limited to individuals with disabilities. See
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 is without question 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 ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations (October 10, 1995),
at 22; EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities (March 25, 1997) at 17 �15. Therefore,
we find that complainant has alleged a viable claim of unlawful medical
disclosure which must be investigated before a decision can be made on
the merits of that claim.
The Commission affirms the dismissal of claims 1-5 and 7-10. With
respect to claim 6, complainant has shown an injury or harm to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, the agency's final decision dismissing
that portion pf complainant's complaint is reversed. Claim 6 is hereby
remanded to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim 6 in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
September 11, 2008
__________________
Date
2
0120083124
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083124