0120151719
11-08-2017
Horace L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horace L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151719
Hearing No. 430-2013-00283X
Agency No. 2004-0658-2012103373
DECISION
On April 17, 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 March 20, 2015, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant was not subjected to discrimination based on his disability.
ISSUE PRESENTED
The issue presented is whether there is substantial evidence in the record to support the findings and conclusions of the AJ.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer, GS-12 at the Agency's Facilities Management Service, Medical Center, in Salem, Virginia. The Agency issued a job announcement for the position of Voluntary Service Officer on September 11, 2011. Complainant applied for the position. On October 25, 2011, he was notified that he along with seven other applicants were qualified for the position. Starting on November 16, 2011, an interview panel interviewed the applicants. The panel asked each applicant the same interview questions and they rated each applicant's response to each of the interview questions. References for the two top scoring applicants were checked. Both had prior experience working in the Agency's Voluntary Service. One of the two top scoring applicants had a better reference than the other so on December 1, 2011, he was offered the position.
On May 9, 2012, Complainant requested a Sensitive Patient Access Report (SPAR) for the period from July 1, 2010 to May 9, 2012. The SPAR listed staff that had accessed Complainant's sensitive records. The records included his medical information that revealed his diagnosis of PTSD. The Acting Privacy Officer (APO) issued the SPAR on May 15, 2012 and it revealed that on October 28, 2011, the Selecting Official (SO) had accessed Complainant's record which included his medical information. Complainant complained to the APO that the SO had accessed his medical records during the hiring process. The APO told Complainant that he thought that the SO had probably authorized Complainant's timecard in his role as Acting Associate Director. When the APO was questioned about the way the records were set up the APO responded that the payroll system and medical records system were not linked. The APO however, indicated that SPAR did not differentiate between access to medical records and access to other sensitive records. The APO reiterated that he thought the SO had accessed Complainant's time and attendance records. Complainant noted that the SO had accessed his record on a pay date and not a time certification date. Complainant alleged that the SO had accessed his patient information and used the information during the selection process for the VSO position to not select him.
Thereafter, an investigation regarding the records was conducted. The APO spoke to various employees. Two employees from Human Resources were interviewed about the selection for the VSO position. They noted that Complainant's medical information could have been known because he had provided information about his status as a disabled veteran with his application package. A payroll employee indicated that the SO had not approved any leave requests or overtime during the pay period at issue. She indicated that the SO could have requested access to time and leave for the Facilities Management Service where Complainant worked, but she did not have a record of him doing so. An Information Technology (OIT) employee was questioned and she decided that the most logical explanation for the entry involving the SO was that he had accessed a list of pending time and leave actions which included Complainant. The OIT person employee felt that a "false positive" might have been created.
At the hearing, the SO testified that he did not remember accessing Complainant's records for time and attendance purposes but he stated, "according to the records I did." The SO denied that he had accessed Complainant's medical information.
On June 22, 2012, a letter regarding the results of the investigation was issued. The letter found that the SO had not accessed Complainant's medical information.
On September 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Post Traumatic Stress Disorder) (PTSD), when:
1. On December 23, 2011, he was notified that he was not selected for the position of Voluntary Service Officer (VSO), GS-12 Vacancy Announcement VHA-658-11-VR536886; and
2. On May 18, 2012, he learned that the Selecting Official had accessed his private medical records on October 28, 2011, prior to Complainant being interviewed for the position of VSO, GS-12, Vacancy Announcement VHA- 658-11-VR536886
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 Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on December 9, 2014, and issued a decision on March 2, 2015. The AJ found that the fact that there was some question about the accuracy of SO's determination as to why he accessed the records did not establish that he inappropriately used the information that he garnered. The AJ noted that SO indicated that he might have had to review records to make sure appointments were done correctly. The AJ indicated that SO may have accessed Complainant's patient records, but that in and of itself did not establish that an improper disability-related inquiry occurred.
The AJ also denied Complainant's attempt to submit a document during cross examination that showed that leave and medical information was an option in the patient records program. The AJ indicated that Complainant failed to include the documents in his prehearing report and that at the hearing he failed to show good cause for allowing the documents to be used or admitted at the hearing.
Further, the AJ determined that Complainant failed to establish a prima facie case of disability discrimination because he failed to show the circumstances surrounding the selection decision gave rise to an inference of discrimination. In this case, the selection decision was based on the recommendation made by the Customer Service Manager and the other members of the interview panel. The evidence showed that the SO selected the selectee because he took the recommendations of the interview panel. Complainant failed to show that the SO influenced or coerced the panel into recommending the selectee or not recommending Complainant. Moreover, the AJ determined that Complainant did not demonstrate that the rating panel was aware of his disability. Complainant testified that he had no reason to believe that the panel was aware of his disability but he indicated that they were aware that he was a disabled veteran.
The AJ determined that the evidence did not show that Complainant's qualifications were superior to the Selectee's qualification related to the VSO position. It was undisputed that the Selectee had prior experience working in Voluntary Services and was working as a Voluntary Services Specialist at another Agency facility; while Complainant did not have any experience working in Voluntary Services. Therefore, the AJ found that Complainant failed to show the Agency discriminated against him based on his disability.
The AJ noted that it was undisputed that the Agency failed to retain the interview notes/evaluations or reference checks; related to the selection of the VSO position. The information was not included in the Report of Investigation or produced during the hearings process. The Agency failed to proffer any explanation as to why the information was not retained. Under Commission regulations, an employer is required to retain personnel or employment records for a period of one year from the date of the making of the record or the personnel action involved. 29 C.F.R. � 1602.14. Moreover, after a discrimination complaint is filed, the Agency is responsible for preserving relevant personnel records until final disposition of the complaint.
Consequently, the AJ found that the Agency violated the Commission's recordkeeping requirements. As such, the AJ found that the appropriate remedies were to order the Agency to: 1. Communicate, in writing, to the managers and supervisors who participate in selections the requirement to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14; 2. Include in the EEO training given to managers and supervisors who participate in selections a provision to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14; and 3. Provide training in EEOC regulations concerning the maintenance of records under 29 C.F.R. � 1602.14 to the SO, interview panel members and human resources personnel involved in the selection process for this specific complaint.
The Agency subsequently issued a final order fully adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged, and that it had committed a record keeping violation. The Agency also accepted the AJ's remedial relief.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in finding no discrimination with regard to SO accessing his medical records. Complainant also asserts that he could not address the Agency's legitimate nondiscriminatory reason for its action because the Agency did not present the selection documents. Complainant argues that he was denied the opportunity to show that the Agency's reasons were pretext for discrimination. Complainant requests that the Agency's final order be reversed.
In response, the Agency requests that the AJ's decision which they fully implemented be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Disparate Treatment
We find that there is substantial evidence in the record to support the AJ's finding that Complainant did not establish that he was discriminated against based on disability with respect to his non-selection. The testimony indicated that the selection decision was based on the recommendation made by the Customer Service Manager and the other members of the interview panel. The SO testified that he selected the selectee because he took the recommendations of the interview panel. There was no evidence that the SO influenced or coerced the panel into recommending the selectee or not recommending Complainant. Likewise, the AJ found that Complainant did not demonstrate that the rating panel was even aware of his disability. Complainant even testified that he had no reason to believe that the panel was aware of his disability although they were aware that he was a disabled veteran. Finally, we note the AJ's determination that the evidence did not show that Complainant's qualifications were superior to the Selectee's qualification related to the VSO position. In this regard, we note that it was undisputed that the Selectee had prior experience working in Voluntary Services and was working as a Voluntary Services Specialist at another Agency facility; while Complainant did not have any experience working in Voluntary Services.
Disclosure of Confidential Medical Information
We also find that the record contains substantial evidence in support of the AJ's finding that Complainant did not establish that the SO accessed his private medical records. Although the timing of his inquiry is suspicious, there was no persuasive evidence presented that the SO improperly accessed Complainant's medical records. The investigations by the APO and the OIT indicated that the SO most likely accessed Time and Attendance records, not Complainant's private medical records.
Record Keeping Violation
We find that the AJ correctly determined that the Agency violated the Commission's record keeping regulations and provided an appropriate remedy.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order.
ORDER
The Agency, if it has not already done so, shall within one hundred and twenty (120) days of the date this decision becomes final take the following actions:
1. The Agency shall communicate, in writing, to managers and supervisors who participate in selections the requirement to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14;
2. The Agency shall include in EEO training given to managers and supervisors who participate in selections a provision to retain interview notes/evaluations in accordance with 29 C.F.R. � 1602.14; and
3. The Agency shall provide training in EEOC regulations concerning the maintenance of records under 29 C.F.R. � 1602.14 to the selecting official, interview panel members and human resources personnel involved in the selection process for the position at issue in this complaint, Job Announcement Number VHA-658-11-VR536886.
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 (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.
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
__11/8/17________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120151719
2
0120151719