Gayle A.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120180478 (E.E.O.C. Sep. 17, 2019)

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

Gayle A.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180478

Hearing No. 510-2015-00244X

Agency No. ATL-14-0659-SSA

DECISION

Complainant filed an appeal2 with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2017,
decision concerning her 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 reasons which follow, the Commission AFFIRMS the
Agency’s decision which adopted the August 31, 2017 decision of the EEOC’s Administrative
Judge, who found no discrimination.

ISSUES PRESENTED

The issues presented are whether the Administrative Judge properly granted summary judgment;
whether the medical confidentiality requirement of the Rehabilitation Act was violated when
information about Complainant was communicated to the EEO Counselor; and whether

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.
2 It is not clear from the record when Complainant, who was represented by counsel, received the
Agency’s decision. In November 2017, Complainant’s attorney submitted the Notice of
Appeal/Petition to an EEOC office in its headquarters but not to the EEOC’s Office of Federal
Operations. The Agency does not dispute the timeliness of the appeal.
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Complainant established by a preponderance of the evidence that the Agency subjected her to a
hostile work environment when her performance was scrutinized and her supervisor requested
information from her regarding her Employee Assistance Program appointment.

BACKGROUND

At the time of the complaint, Complainant worked as a Senior Case Technician in the Agency’s
Office of Disability Adjudication and Review (ODAR) in St. Petersburg, Florida. The ODAR
Group Supervisor (S1) was Complainant’s immediate supervisor. Complainant’s second-level
supervisor was the Hearing Office Director (S2), to whom S1 reported directly. Complainant’s
third-level supervisor was the Chief Administrative Law Judge (S3) for the St. Petersburg ODAR.
S3 was S2’s immediate supervisor.

Complainant’s prior protected activity concerned an EEO complaint filed in February 2014 on a
non-selection. S1 was the recommending official for the selections for the position for which
Complainant interviewed, and was a witness in the investigation. S2 and S3 were named in the
prior complaint as discriminating officials.

Complainant indicated that when she returned to work in late January 2014 after being out for
several weeks, she was assigned to take the place of a promoted employee who had been assigned
to do hearing work with S3. Complainant also stated that she was not adequately trained for the
position because the promoted employee was the person who should have been training her while
the promoted employee was also transitioning to the new position. Complainant stated that she
inherited a two-month backlog of work that had not been completed by the promoted employee.
Complainant explained to S1 that she was not trained for the duties to which she was assigned and
also informed her of the backlog, but nothing was done. Via email on March 7 and 13, 2014,
management scrutinized Complainant’s work performance.

Prior to March 3, 2014, Complainant had attended two EAP counseling sessions. S1 did not request
documentation. On March 3, 2014, Complainant had another EAP counseling session scheduled.
S1 informed Complainant via an e-mail that she had to provide proof of when she attended the
EAP counseling session. Complainant believed that she was subjected to reprisal by being treated
differently from other employees who had no prior protected activity when she was asked to
provide documentation. Complainant also stated that S1 had not requested documentation prior
to her third request. She explained that S1 asked her for proof that she attended counseling such
as a business card, letter head, or invoice from the EAP Counselor. Complainant separated from
the Agency voluntarily on March 21, 2014.

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The EEO Counselor’s Report discloses that Complainant initiated contact on July 2, 2014. On
August 11, 2014, Complainant filed a discrimination complaint, later amended, alleging that the
Agency subjected her to a hostile work environment when it discriminated against her on the bases
of race (Black), color (dark skinned)3, and reprisal for prior protected EEO activity when:

1. On March 3, 2014, Complainant’s supervisor (S1) requested documentation about an
Employee Assistant Program (EAP) counseling appointment;

2. Via email on March 7 and 13, 2014, management scrutinized Complainant’s work
performance; and

3. On July 14, 2014, Complainant’s manager discussed Complainant’s medical diagnosis
during an interview with an EEO Counselor.

The Agency initially dismissed claims 1 and 2 on the grounds of untimely EEO Counselor contact.
It subsequently rescinded its dismissal.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ granted
the Agency’s motion for summary judgment and issued a decision on August 31, 2017. The
Agency subsequently issued its decision adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant continues to maintain that the grant of summary judgment was not proper because
genuine issues of material fact exist; that she was subjected to an unlawfully hostile work
environment; and that medical confidentiality concerning her diagnosis was violated. She also
contends that statements made by Agency witnesses were not truthful and that their explanations
for its actions were pretextual. Complainant also argues that disability was not a basis being
alleged.

In its opposition brief, the Agency asserts, among other things, that the grant of summary judgment
was proper, and that Complainant failed to establish that she was subjected to a retaliatory hostile
work environment. It urges that its decision be affirmed.

3 An Order on Initial Conference and Deadlines and Record Completion discloses that at an initial
conference with the EEOC Administrative Judge, Complainant withdrew race and color as bases.
Disability as a basis is discussed infra.
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ANALYSIS AND FINDINGS

Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11,
2003). We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are in
dispute or present further material evidence establishing facts in dispute. Here, Complainant failed
to show that there were any material facts in dispute. Ultimately, the AJ correctly determined that
there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the
AJ’s issuance of a decision without a hearing was appropriate.

Medical Confidentiality – Claim 3

In claim 3, Complainant asserted that she was subjected to an unlawful medical disclosure. The
Commission’s regulations implementing the Rehabilitation Act provide for the confidentiality of
medical records.4 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.” An agency’s obligation to keep certain medical
information of its employees confidential applies to all employees regardless of disability status.
This requirement applies to confidential 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).

4 The Rehabilitation Act was amended so that the standards under Title I of the Americans with
Disabilities Act (ADA) would be applied to employment discrimination cases under the
Rehabilitation Act.
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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; Lampkins v. U.S. Postal Serv., EEOC Appeal No. 0720080017 (Dec. 12, 2009);
see also ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical
Examinations (Oct. 10, 1995) at 22; EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997) at question 15. The limited exceptions
to the confidentiality requirements are: (1) supervisors and managers may be told about necessary
restrictions on the work or duties of the employee and about necessary accommodations; (2) first
aid and safety personnel may be told if the disability might require emergency treatment; and (3)
government officials investigating compliance with the ADA must be given relevant information
on request. These requirements also extend to medical information that an individual voluntarily
discloses to an employer. Porter P. v. U.S. Postal Serv., EEOC Appeal No. 0120171893 (Mar. 27,
2019); Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120142249 (Oct. 14, 2014);
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 27, 2000).

If an agency discloses medical information pertaining to a complainant in a manner that did not
conform with this regulation, then its act of dissemination would constitute a violation of the
Rehabilitation Act. Further, no showing of harm beyond the violation would be necessary to state
a claim. Valle v. U.S. Postal Serv., EEOC Request No. 05960585 ((Sept. 5, 1997); Clark v. U.S.
Postal Serv., EEOC Appeal No. 01A52139 (June 24, 2005); Davis v. Dep’t of the Treasury, EEOC
Appeal No. 0120102597 (June 21, 2012) (no per se violation where EEO investigators included
medical information on the interrogatories distributed to potential witnesses, including
Complainant’s supervisors, managers and co-workers during investigation of complaint).

Regarding the disclosure of her medical diagnosis, S3 stated in his affidavit that Complainant
mentioned to him informally in the latter part of 2013 of her recent diagnosis of diabetes, knowing
that S3 also had diabetes. According to S3, the two discussed the condition, how best to treat it,
and precautions to take. At the time, Complainant was a scheduler and would come to him
periodically on scheduling matters. He stated that during an interview with the EEO Counselor,
Complainant’s medical condition arose. S3 explained that he mentioned the diabetes to the EEO
Counselor in the context of her work performance claim and having given her latitude for errors
in her work.

In response, Complainant submitted a rebuttal to S3’s statements. Complainant disagreed with
S3’s accounting of the timeframes of her diagnosis and his estimation of her work performance.
She denied giving any one the right to reveal her medical diagnosis.

As an initial matter, we note that in the AJ’s decision, he identified disability as one of two bases
of alleged discrimination. The other basis was reprisal. The AJ found that Complainant was a
disabled individual and presumed that she was qualified to perform the essential functions of her
position. Upon review, we find that the AJ erred in identifying disability as a basis. However, the
error was harmless.
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The AJ nonetheless engaged in the proper analysis and reached the proper conclusion, correctly
recognizing that the requirement of medical confidentiality under the Rehabilitation Act applies
regardless of whether the individual has a disability. Typically, one bringing a claim of disability
discrimination must first establish that she is a member of the class of persons protected by the
Rehabilitation Act, i.e., a qualified individual with a disability. However, the Rehabilitation Act
does not limit the prohibitions against improper disclosure of confidential medical information to
individuals with disabilities. See Hampton, supra.

As to the crux of Complainant’s claim 3, the AJ observed that the claim involved the unauthorized
disclosure of her diagnosis to a third party, i.e. the EEO Counselor. He found, however, that the
discussions between EEO Counselors and witnesses or potential witnesses were intended to
necessarily obtain information about claims Complainant had brought to the attention of an EEO
Counselor. We find, as did the AJ, that the S3’s disclosure of Complainant’s diabetes did not
violate the confidentiality requirements of the Rehabilitation Act. The disclosure was made by S3
in the context of discussing Complainant’s work performance, a claim Complainant raised with
the EEO Counselor, who was an official involved in the discrimination complaint process.5
Accordingly, we conclude that the Agency did not violate the confidentiality provisions of the
Rehabilitation Act in this instance.

Disparate Treatment – Claim 1 and 2

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence
that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).

5 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. Davis v. Dep’t of the Treasury, EEOC Appeal No. 0120102597 (June 21,
2012)(no violation of the Rehabilitation Act where interrogatories sent to witnesses, including the
complainant’s supervisors, managers, and co-workers, disclosed that complainant’s disability was
that of a recovering alcoholic and addict and employees deemed to have a need-to-know); Skarica
v. Dep't of Homeland Sec., EEOC Appeal No. 0120073399 (Mar. 5, 2010) (finding agency did not
violate confidentiality provisions of Rehabilitation Act when complainant’s supervisor consulted
a personnel official and an agency physician to ascertain how to accommodate complainant’s
medical condition); Elliot J. v. Dep’t of Homeland Security, EEOC Appeal No. 0120171051 (Aug.
10, 2018) (no evidence that report discussed with any employee who ‘did not need to know’).
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This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

As for claim 1, S1 stated in her affidavit that Complainant told her that she had an EAP
appointment and that she would be using credit or leave time after her appointment and would not
be returning to the office. The request for an appointment time was made in order to accurately
complete Complainant’s time and attendance for the day. S1 had not asked for this information
previously because Complainant was not using other leave. Because Complainant came to work
early on March 3, she did not have to use credit time or other leave after her EAP appointment so
S1 withdrew her request. We find that S1 provided legitimate, nondiscriminatory reason for her
initial request for documentation as alleged in claim 1. Further, we find that Complainant has not
shown that the reason provided by S1 was mere pretext to mask unlawful discrimination regarding
claim 1.6

In claim 2, Complainant asserted that via email on March 7 and 13, 2014, management scrutinized
Complainant’s work performance. S1 stated that Complainant had previously been assigned to
work with S3 in 2013 and another judge in 2012. The duties that she was assigned were within
the scope of the Senior Case Technician position that she held. S3 noted that Complainant had
made errors in her work, and she was just making Complainant and S1 aware of the errors by
providing feedback to Complainant on issues of her work performance. S3 averred that it was
typical for her to review the employee’s work and provide “constructive feedback” so that
Complainant could improve performance. S1 sent Complainant two emails regarding items that
Complainant may have missed regarding the performance of her duties.

In response to the Agency’s legitimate, nondiscriminatory reasons for claim 2, Complainant
argued that the prior occupant of her position should have been the person to train her. However,
this is pure conjecture on Complainant’s part. Complainant admitted that S1 provided her with
links to refresher training. She also did not dispute that prior to her having engaged in protected
activity, S1 had provided her with refresher links in the past and had sent her emails regarding
errors. As such, we conclude that Complainant has not shown that the Agency’s reasons for the
emails was pretext for discrimination.

6 To the extent that Complainant alleged a violation of the union bargaining agreement regarding
EAP counseling, the Commission has no authority to consider an alleged violation of provisions
of a bargaining agreement.
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Harassment – Claims 1, 2, and 3

In her complaint, Complainant alleged that the events addressed above constituted a hostile work
environment. To establish a claim of harassment Complainant must show that: (1) she belongs to
a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based on
her statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Here, as already concluded above, there is no evidence to support a finding that Complainant’s
race, color, or prior protected activity played any role whatsoever in the decisions regarding claims
1 and 2. Moreover, the responsible management officials provided legitimate, non-discriminatory
explanations for the request for documentation and the scrutiny of Complainant’s work. Further,
we held above that Complainant failed to demonstrate that management unlawfully disclosed her
medical condition. In sum, Complainant failed to prove that her race, color, or retaliatory animus
played any role in the incidents she proffered as evidence of her harassment claim.

Having construed the evidence in the light most favorable to Complainant, Complainant failed to
show that she was subjected to an unlawfully hostile work environment and disparate treatment.
The Agency has provided legitimate, nondiscriminatory reasons for the actions it took which
Complainant has failed to show were pretext for discriminatory animus. In addition, we conclude
that the Agency did not violate the confidentiality provisions of the Rehabilitation Act.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing
the AJ’s decision that the Agency did not discriminate against Complainant.

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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 (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.
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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

September 17, 2019
Date