EEOC Appeal No. 0120152121
11-29-2017
Freddy V. v. Dep't of the Interior
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Freddy V.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120152121
Hearing No. 570-2013-00693X
Agency No. NPS-12-0559
DECISION
On June 8, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 29, 2015, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision which found that Complainant did not demonstrate that he was subjected to discriminatory harassment, reprisal or denied a reasonable accommodation.
ISSUE PRESENTED
The issue presented is whether the FAD correctly found that Complainant did not demonstrate that he was subjected to discrimination, harassment or denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic Supervisor, WS-10 at the Agency's Palisades District, Chesapeake and Ohio National Historical Park in Hagerstown, Maryland. After Complainant started his position, he experienced chronic pneumonia which caused him to use a substantial amount of leave. He indicated that mold contamination in his work environment exacerbated his medical condition. In the summer of 2012, one of Complainant's employees told him that the Chief of Maintenance, Complainant's first-line supervisor (S1), told him that it was his plan to extend Complainant's probationary period due to his frequent extended absences so he could then terminate Complainant's employment. Complainant confronted S1 and S1 admitted to having the conversation. Complainant maintained that he felt embarrassed, humiliated, and felt that this undermined his supervisory authority because the information was shared with the rest of his team.
Further, Complainant indicated that he was not provided the necessary resources to perform his supervisory duties. He asserted that the day before he started his supervisory position he lost four employees for various reasons but still had the same work load. Complainant also maintained that he did not receive a performance appraisal for the rating period of October 1, 2011 through August 2012. He was told by S1 that he was not going to give him an appraisal because he was not at work enough and that he would have to wait. Complainant argued that because he did not receive an appraisal he was left not knowing how he was doing and it eliminated the opportunity for him to receive either a cash award or a time off award for his performance.
Complainant indicated that he was denied a reasonable accommodation in July 2012. He asserted that he learned that there was a mold condition in his office trailer so he asked to be moved to another location within the same area of the park until the mold could be eliminated. At first, management agreed but then at the last minute he was told that he was better off in that office than he was outside because the air inside was cleaner than the air outside. Complainant was told that testing had shown that the mold level in the office was within safety standards for the walk-in public. Finally, as an act of reprisal, Complainant maintained that his uniforms were not delivered to his current address.
On October 15, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of disability (cystic fibrosis) when:
1. He was subjected to a hostile work environment based on disability as evidenced by the following events:
a. In the summer of 2012, management divulged his personal information to a coworker;
b. On August 15, 2012, he was not provided the necessary resources to perform the duties of his supervisory position and his authority was undermined due to interference by management;
c. Since the summer of 2012, he had not received a performance appraisal.
2. Whether he was discriminated against based on disability when, in July 2012, his request for reasonable accommodation was denied.
3. Whether he was discriminated against on the basis of reprisal for his current EEO complaint when his work uniforms were not delivered to his current work address (continuing since summer 2012).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to harassment and reprisal as alleged. Specifically, the Agency asserted that the incidents either in isolation or collectively, were not severe or pervasive enough, and did not unreasonably interfere with his work performance or create an intimidating, hostile, or offensive work environment. Management indicated that claims 1a, 1b, and 1c involve a supervisor discussing Complainant's appraisal with the Complainant's subordinate, not having enough staff, and not receiving a performance appraisal, the Agency determined that such actions were not sufficiently severe and/or pervasive enough to establish a claim of harassment, nor did Complainant establish that discriminatory animus was involved.
Further, management maintained that Complainant was not denied a reasonable accommodation. According to the Agency, Complainant provided no medical documentation to establish that he had a disability. Nevertheless, the Agency, assuming he was a qualified individual with a disability, indicated that, after the bottom and sides of the trailer were cleaned, an environmental test showed that the mold outside the trailer was worse than the mold inside the trailer and that the office environment was safe to work in. Complainant was also offered the Engineer's house at Great Falls, Maryland while the mold remediation was being done, but he refused. After the mold remediation was completed, it was decided that Complainant did not have to be moved to another location.
Management also acknowledged that Complainant requested a transfer to another site but management believed that the request was made because he was having problems with his work unit, and at no time did Complainant associate his transfer request with his medical condition. Management also maintained that Complainant was not retaliated against when his uniforms were delivered to the Hagerstown location instead of his Beltsville, Maryland, duty station. Management explained that Complainant ordered the uniforms in April 2012, and inputted the wrong address. Moreover, management indicated that it was not reprisal as this incident occurred prior to Complainant filing the instant complaint.
Finally, management indicated that it had legitimate, nondiscriminatory reasons for its actions. First, S1 admitted that he exercised bad judgment in discussing his plans to evaluate Complainant in light of his absences with Complainant's subordinate. Further, management indicated that it attempted to support Complainant to help him deal with the challenging circumstances of supervising with a decreased employee pool, and even temporarily promoted another employee into a vacant position so that he could help Complainant but Complainant was reluctant to take assistance and advice and indicated that he wanted to do things his way. Management also indicated that interim appraisals were carried out for each employee but they went missing and when year-end reports were due Complainant had been assigned to work at Greenbelt Park.
Regarding the reasonable accommodation denial claim, management explained that Complainant was offered an opportunity to work in Great Falls while mold remediation was conducted, but turned down the offer, and when test results indicated that the office environment was safe, management did not think that a transfer was necessary or appropriate. Moreover, Complainant's request for a transfer to another park location was never presented as a reasonable accommodation but was requested due to the difficulties he was having with his subordinates. Finally, management indicated that when they learned that Complainant had not received his uniforms, the matter was referred to the Regional Uniform Coordinator and steps were taken to remedy the situation. The Agency maintained that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant's contends, among other things, that he established a prima facie case of discrimination. Complainant maintains that management knew he was disabled due to his repeated illnesses, yet they failed to transfer him. Further, Complainant maintains that management was fully aware of the fact that he had filed an EEO complaint. Complainant explains that he ordered the uniforms in April 2013 not 2012, hence negating the Agency's explanation. Complainant also contends that the Agency did not articulate legitimate, nondiscriminatory reasons for its actions. Complainant seeks compensatory damages and attorney's fees.
In response, the Agency maintains that its FAD should be affirmed as Complainant did not show that the Agency's reasons were pretext for reprisal or discrimination. Moreover, the Agency contends that Complainant did not demonstrate that he was subjected to discrimination as the issues complained of were not severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, Complainant did not demonstrate that he was subjected to reprisal, disability discrimination or harassment with respect to claims 1b, 1c, 1d, 2, and 3. We find that the record shows that other than Complainant's own assertions, he provided no evidence that showed that management intended to undermine him as a manager or that they took away his staff on purpose. The evidence showed that Complainant was offered assistance with his staff and that employee reductions were taking place all over the unit not just his unit.
Additionally, Complainant claimed that he missed out on possibly receiving a bonus or having the opportunity to improve his performance because he did not receive a performance rating, the record shows, however, that Complainant was offered assistance with management issues but refused them, that Complainant complained about managing his employees to the point that he requested a transfer, and more importantly he was frequently absent so the ability of his rater to have sufficient time to rate him was challenging. We find that these claims are work related concerns that are not severe or pervasive enough to establish a hostile work environment nor do we find that Complainant showed that the Agency's actions were due to discriminatory animus.
Further, we find that Complainant did not show that he was denied a reasonable accommodation. We find that after the environmental study showed that it was safe to work in the trailer there was no need to move Complainant. Moreover, we find that Complainant did not provide any medical documentation which indicated that he needed more environmental protection than the Agency provided. Additionally, the record shows that Complainant was transferred to the Beltsville location in accordance with his request for a transfer. Finally, we find that even assuming arguendo that Complainant established a prima facie case of reprisal, Complainant has not proven that he was subjected to reprisal with regard to his uniforms. The record showed that Complainant was the one that mistakenly sent the uniforms to the wrong address. Management explained to Complainant that he had the option of picking them up from the Hagerstown location but he refused to do so because of the distance from his new location. Therefore, management made arrangements for Complainant to contact the Uniform Representative to have the problem corrected. We find that other than Complainant's conclusory statements he has not shown that he was subjected to disability discrimination, reprisal or harassment.
Improper Confidential Medical Disclosure
Under the Rehabilitation Act and ADA, information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record..." 29 C.F.R. � 1630.14(c)(1) (emphasis added); see also 42 U.S.C. � 12112(d)(3)(B), (4)(C). By its very terms, this requirement applies to medical information obtained from "any employee" and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Further, the requirement applies to all medical information, including information that an individual voluntarily discloses. Enforcement Guidance on Employee Inquiries and Examinations; see also EEOC Enforcement Guidance; Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice 915.2002 at 21-22 (Oct. 10, 1995). Documentation concerning an individual's diagnosis or symptoms is confidential medical information. Id. at n. 26.
Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, first aid and safety personnel may be told if the disability might require emergency treatment, and government officials investigating compliance with the ADA and the Rehabilitation Act must be given relevant information on request. 29 C.F.R. � 1630.14(c)(1); see also 29 C.F.R. p. 1630 app. �� 1630.14(b), 1630.16(f) (employers may use information for workers' compensation and insurance purposes).
The record shows and S1 acknowledges that he discussed Complainant's absences, which were caused by his medical condition, with Complainant's subordinate. S1's testimony about his conversation with the subordinate makes clear that Complainant's confidential medical information was discussed. Report of Investigation pgs. 144 - 45. S1 indicated that:
[T]he the crux of the conversation was about how I wanted to give him the opportunity because if he was judged on his performance at that point in time he wasn't doing very well because he didn't have the opportunity to get in any type of stride.
Id.
S1 indicated that Complainant "[w]as only on duty for maybe six weeks in between absences and there wasn't enough time." Id. He also indicated that about the time Complainant would begin to show up on a regular basis, he would be "out for whatever reason." Id. Finally, he indicated that Complainant had knee surgery during this period. Given that this conversation took place because of the subordinate's concerns about the problems Complainant's absences were supposedly causing, we find it highly unlikely that S1 would not have discussed the reasons behind Complainant's absences and why he felt it fair to extend Complainant's probationary period. Accordingly, we find that a violation of the Commission's regulations occurred.
CONCLUSION
Accordingly, the Agency's FAD is AFFIRMED in part in that we find Complainant did not establish that he was subjected to reprisal discrimination, denied a reasonable accommodation or harassment. The decision, however, is REVERSED in part in that we find that Complainant's confidential medical information was disclosed in violation of the Rehabilitation Act.
ORDER (C0610)
Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final:
1. The Agency shall require S1 to attend a minimum of eight hours of EEO training on the laws prohibiting employment discrimination, paying particular attention to the Agency's obligations under the Rehabilitation Act, with respect to the disclosure of confidential medical information.
2. The Agency shall consider taking appropriate disciplinary action against S1. 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 reasons for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure date(s).
3. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages.
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 (G0617)
The Agency is ordered to post at its Palisades District Hagerstown, Chesapeake and Ohio National Historical Park copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
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 (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 time limits for filing a civil action (please read the paragraph titled Complainant's 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
__11/29/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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