0120150193
10-19-2017
Mario G.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mario G.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120150193
Hearing Nos. 451-2013-00078X, 451-2013-00079X
Agency Nos. 9P0J11027, 9P0J11033
DECISION
Complainant timely filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's final order 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 MODIFIES the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge (AJ's) finding that Complainant did not prove that he was subjected to discrimination and a hostile work environment as alleged; and 2) whether the AJ erred in failing to address a claim of Complainant's complaint as a violation of the confidentiality requirements of the Rehabilitation Act.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aircraft Sheet Metal Mechanic, WG-3806-10, with the Air Education and Training Command, Trainer Development Division, at Randolph Air Force Base in Texas. Report of Investigation (ROI), at 26. The Structural Fabrication Shop Supervisor served as Complainant's first-level supervisor (S1). On February 12, 2012, a Machinist Supervisor took over as Complainant's second-level supervisor (S2). The Supervisory General Engineer/Trainer Development Director (S3) also managed Complainant.
In June 2011, Complainant had surgery for a hernia, and requested to return to work two weeks later with light duty. Hearing Transcript (Hr'g Tr.), at 84. Complainant's work restrictions at the time were no heavy bending, no pulling, no crawling and no heavy lifting for two weeks. Id. Management however denied Complainant's request for light duty at the time.
Sometime in September 2011, or before, Complainant was assigned to perform work on the fuselage of a C-17 Globemaster aircraft. According to Complainant, on Thursday, September 15, 2011, he got into a disagreement with S1, wherein S1 told him he was taking too long to drill holes on the C-17. Complainant testified that S1 became aggressive towards him, saying that his EEO complaints were like "beating a dead horse," and "were going nowhere." Hr'g Tr., at 51. Complainant also testified that S1 pushed him with his index finger in the chest twice. Id. The following Monday, September 19, 2011, Complainant filed a military police report over the alleged assault, describing the alleged negative comments that S1 had made over his EEO activity. Hr'g Tr., Ex. B. Complainant wrote in the police report that S1 said that he was spending too "much time and money on EEO" matters and threatened to fire him. Id. A Sheet Metal Mechanic (SMM1) (Hispanic), who allegedly witnessed the assault, wrote a statement for management on September 20, 2011. Hr'g Tr., Ex. D. Therein, SMM1 described that he witnessed S1 poke his finger in Complainant's chest, saying "you are beating a dead horse into the ground." SMM1's written statement however did not refer to S1 saying anything about Complainant's EEO activity. Id.
From September 19, 2011, through October 5, 2011, Complainant believed that S1 and S2 failed to provide him with the necessary equipment and a facility key needed to complete the C-17 project. Complainant testified that his previous supervisor took his facility key, and management failed to provide him with another one. Complainant believed that his previous supervisor took the key because he filed an EEO complaint. Complainant specifically testified that Hanger 84 has doors that lock, and without a key he cannot access certain tools and use the restroom there. Hr'g Tr., at 76-77. Complainant stated that he had to walk all the way to Hanger 74 to use the restroom. Id. Complainant also testified that the C-17 project was very hazardous and he needed access to the eyewash located in Hanger 84. Id. He testified that every crew member had a key, and it was hard for him to use the computer, telephone, and obtain personal items without one. Id.
However, according to management, the C-17 fuselage project was located underneath an open-air tent, so a facilities key was not necessary. Id. at 287-288. S2 testified that Complainant had a key signed out already, but Complainant claimed his previous supervisor took it, which the supervisor denied. Id. at 297. S2 testified that Complainant no longer worked in Hanger 84 and was assigned to Hanger 74, so the key at issue was no longer necessary. Id. at 297-98.
As part of the C-17 project, Complainant and others had to drill the floor of the C-17 to remove bolts from the aircraft. Complainant however felt that S2 did not provide him with the necessary oil and drill bits for the work on the C-17. Complainant testified that he needed oil to keep the drill bits cold. Id. at 50. Complainant believed that management specifically cut back on the oil supplied to him and another Machinist on the project because they both had filed EEO complaints. Id. at 72. Complainant stated that management assigned them the C-17 project, making them drill through magnesium and titanium in reprisal for their EEO complaints. Complainant testified that the aircraft would catch fire because they did not have enough oil to cool the metal. Id. at 71. The Machinist, who was also assigned to project, averred that S1 did not want employees to use the oil, he kept it under his desk, and employees had to request oil each day. ROI, at 516. The Machinist averred that after asking, S2 "would bring out the oil to use each day." Id.
S2 testified that he had to ration the oil because workers were using too much of it, and he had to make sure there was enough oil available. Hr'g Tr., at 301-302. S2 further testified that he kept extra oil in a locker that was made available to Complainant and other workers. Id. Complainant also complained that he was made to sharpen drill bits. But according to the Warehouseman, all employees were required to reuse drill bits until they could no longer be sharpened before they were replaced. ROI, at 489.
When Complainant was initially assigned to the C-17 project he worked with a partner, SMM1. However, SMM1 was pulled off the C-17 project, and as a result Complainant was forced to work alone. According to Complainant, this made the project very difficult for him to meet the necessary time frame. SMM1 expressed his belief that the project required two people. Hr'g Tr., at 197. A Metal Mechanic who previously worked the C-17 project also felt it was a two-man job. This employee specifically stated that the C-17 project was so massive and believed it required two people for safety reasons. ROI, at 500. Complainant maintained that he and the Machinist were assigned to the C-17 project because they both had prior EEO activity. Complainant specifically testified that employees said he and the Machinist were assigned to the "rock pile," drilling through hard material with no help, where employees were constantly being injured. Id. at 72. Complainant stated that the Machinist's partner got pulled off the C-17 project because he suffered a herniated disk in his back, and another individual cut his leg and got six stiches. Id. After months of working on the C-17 project, Complainant severely hurt his knee on November 9, 2011, and was thereafter placed on light duty due to his injury. Hr'g Tr., at 86. Complainant underwent knee surgeries on January 19, 2012, and August 9, 2012, and management continued to provide him with light duty. Id. at 87-88.
Meanwhile, on October 12, 2011, S1 gave Complainant with midterm feedback, writing that his fabrication and metal-working skills are rusty, referring to work he had performed on ejection seats years earlier. Id. at 90-92. Complainant felt it was improper for S1 to refer to work on an ejection seat he had performed years earlier. Id. Also, according to Complainant, on January 4, 2012, he was on the phone and computer trying to schedule doctor's appointments regarding his worker's compensation claim, when S2 sternly asked him to get work. Id. at 95-96. According to S2, Complainant had been at work for nearly two hours and had not reported to his work area. Id. 309. Complainant also averred that while he was in Hanger 84 updating his profile on the new computer with other employees, S2 in a loud voice questioned why he was not working in his own work area.
Complainant also stated that in April 2012, he submitted a request to S3 regarding credit for welding he completed in June 2011. Id. at 136. Complainant was thereafter reportedly advised that his position description already reflects welding credit. Complainant however asserts that S3 gave credit to others, which allowed them to be promoted. Id. at 138.
In April 2012, a Machinist reported to Complainant that he saw an email left on S2's desk regarding Complainant's light duty medical information. The Machinist averred that on April 4, 2012, he entered S2's office and observed a letter containing Complainant's personal information "sitting out for everyone to see." ROI, at 534. The Machinist observed that the email was seeking guidance about Complainant's request for light duty and contained Complainant's personal information. Id. The Machinist explained that at the time, everyone was required to enter S2's office to use the shared hard drive, and "there are several things in [S2's] office that employees go for." Id. at 535. The Machinist attested:
The hard drive was sitting on a table away from [S2's desk], and a printout of an email was sitting right next to the hard drive face up, and I was able to read it.
Id.
The Machinist further stated that the email showed S1 asking for guidance from the Civilian Personnel Office about Complainant's need for light duty. Id. The Machinist explained he stopped reading the email as soon as he saw Complainant's personal information, and immediately told Complainant about it. Id. Complainant believed that this email was intentionally left on top of S2's desk for everyone to see. Complainant stated that the email caused rumors within the office about his medical condition and how he could be disqualified from employment.
On July 19, 2011, and November 18, 2011, Complainant filed EEO complaints, as amended, alleging that the Agency discriminated and subjected him to harassment on the bases of national origin (Hispanic), disability (permanent hip and back problems), and reprisal for prior protected EEO activity when:
1. from May 2010 to June 2011, S3 directed that he could not use his personal cell phone on duty time, even though other employees were allowed to do so;
2. On September 15, 2011, S1 harassed and threatened him by pointing his finger and pushing him in the chest because Complainant did not complete a computer-based test fast enough, and S3 did nothing;
3. On September 21, 2011, S3 threatened to suspend him for 30 days without pay for abuse of a government vehicle when he was a passenger on September 20, 2011;
4. From September 19 to October 5, 2011, S2 and S1 refused to provide him the necessary equipment and a facility key needed to complete the C-17 project;
5. On October 7, 2011, S1 ordered him to continue working alone on a C-17 project when the work was a two-man job;
6. On October 7, 2011, he became aware that S1 placed an employee on light duty, when S1 and S2 had denied his same request after his surgery in June 2011;
7. On October 12, 2011, S1 gave him a negative midterm feedback that addressed ejection seat refurbishment issues that happened years ago;
8. On January 4, 2012, S2 harassed and reprised against him when he was on the phone and computer trying to obtain information for his medical treatment and to schedule doctor's appointments regarding his worker's compensation claim;
9. On March 1, 2012, S2, who Complainant did not know was the new second-level supervisor, yelled at him in front of other employees when Complainant's common access card and password were being coded into a new system, like all the other individuals;
10. On March 1, 2012, S2 singled him out and said that he could not leave his work area or do anything without S2's permission;
11. On April 4 and 5, 2012, S2 left an email from Civilian Personnel asking about his medical condition sitting on his desk for all employees to review and coworkers told him they could read the document;
12. From November 11, 2011 to May 23, 2012, the Colonel failed to reassign him to a position in 902 Mission Support Group;
13. In April 2012, S2 refused to give him a building key that S1 swore under oath in March 2012, would be provided to him;
14. On May 1, 2012, S2 yelled at him in front of other employees for using the updated equipment necessary to complete an assigned task; said not to train him to give him current skills like other machine shop employees, and changed the task to force him to complete the project on an outdated machine; and
15. On May 12, 2012, S3 failed to give him credit for a 5-month long welding project as promised.
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 June 12, 2013, and issued a decision on July 23, 2014. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
AJ's Decision
The AJ found, with regard to claim 1, that testimony supported the Agency's position that Complainant used his personal cell phone more than other employees. The AJ noted that Complainant did not dispute that he used his cell phone extensively while on duty and did not dispute that management offered him the use of an office where he could make his phone calls privately. The AJ considered Complainant's excessive us of his cell phone along with management's limited counseling of Complainant over a three period to find that the Agency's actions were not severe and pervasive enough to constitute a hostile work environment. With regard to claim 2, the AJ noted that a witness present averred that he saw the two men standing there, but did not know anything had occurred and that nothing happened that would have drawn his attention. The AJ found Complainant's allegation to be exaggerated based on his demeanor and the evidence in the record. In so finding, the AJ noted that although Complainant claimed that S1 assaulted him on a Thursday, he did not file a police report until the following Monday wherein the police did not accept his complaint. The AJ also did not find SMM1's testimony credible that he witnessed S1 push Complainant. In finding the SMM1's testimony not to be credible, the AJ noted, among other things, that SMM1 remembered many irrelevant details about S1, like the fact in 2005 or 2006, S1 stated he did not like Mexican food and suggested changing a food fund raiser from tacos to biscuits and gravy. The AJ also did not credit SMM1's testimony because SMM1 testified that he heard S1 say to Complainant, "Why do you persist in pursuing these grievances?" and telling Complainant, "You're beating a dead horse." The AJ noted that SMM1 did not include these details in his prepared written statement submitted days after the incident occurred.
In addressing claim 3, the AJ noted that Complainant was only a passenger in the vehicle and did not receive any discipline. With respect to claim 4, the AJ noted that S2 rationed oil because too much of it was being used and S2 canceled the drill bit order because he wanted employees to sharpen and reuse the drill bits until they could no longer be sharpened before they were replaced. The AJ observed that, according to the Warehouseman, everyone was required to sharpen drill bits for reuse. The AJ also found that Complainant had been given the key at issue, as the record shows he signed a receipt for the key. In finding that Complainant failed to establish discrimination regarding claim 5, the AJ noted that management believed that the project was initially a two-man job, but later thought it was a one-man job as another employee was completing the task on his own. The AJ further noted, with respect to claim 6, that Complainant's doctor provided a doctor's note to S1, which stated that Complainant was "totally incapacitated." But later, the same doctor provided a note writing that Complainant was returning to work "with no restrictions." The AJ noted that S1 denied Complainant's request for light duty because it was unclear what duties he could perform, given that his doctor wrote that he was totally incapacitated. With regard to claim 7, the AJ found no evidence that the discussion in Complainant's midterm evaluation was an adverse action, as Complainant was not disciplined and suffered no consequences when his work on the previous project was discussed.
In addressing claim 10, the Agency found that S2 credibility testified that he instructed all employees, not just Complainant, to inform their supervisors if they left their assigned work area for an extended period of time. The AJ found no evidence that Complainant suffered any adverse employment actions when S2 questioned him about being outside his work area. The AJ also noted, with regard to claim 11, that even assuming that S2 should have been more careful about maintaining the confidentiality of the email, the evidence did not reflect that S2's actions in this respect were discriminatory.
In also finding no discrimination with regard to claim 13, the AJ observed, as noted above, that Complainant had signed a receipt for the key at issue, and because the key had not been returned or accounted for, Complainant was not issued another one. As for claim 14, the AJ noted that although two other individuals were given assignments not to train Complainant, Complainant could nevertheless perform the task on a drill press. Lastly, as for claim 15, the AJ found no evidence in the record to support Complainant's contention that he was entitled to credit for the project or that the Agency's failure to credit him for his work on the project constituted an adverse employment action.2
CONTENTIONS ON APPEAL
Complainant's Brief on Appeal.
On appeal, Complainant, through his attorney, believes that the Agency took the above listed actions against because of the multiple EEO complaints that he previously filed. Complainant asserts that his latest complaint, filed on January 20, 2011, concerned his non-selection to the position of Sheet Metal Mechanic Supervisor wherein S1 was selected over him. Complainant maintains that he has been subjected to a hostile work environment since this prior EEO complaint. Complainant maintains that his former second-level supervisor made statement to him, showing a clear bias against his EEO activity. Complainant also asserts that S1 showed bias, making comments to him to the effect, "Your EEO complaints are the cause of the harassment," "You file too many complaints and they are not effective," "You are beating a dead horse in the ground with your EEO complaints," and "this is not over until they fire you." Complainant further asserts that witnesses testifying on his behalf believed that they would be subjected to reprisal for supporting his case. Complainant states that other employees have also stated for the record their belief that he was in fact subjected to a discriminatory hostile work environment based on his protected classes.
In addressing claim 1, Complainant asserts that his coworkers testified that he did not use his cell phone more than other employees, and that there is no policy governing the use of cell phones. Complainant asserts that one employee testified that S1 actually encourages employees to have their cell phones for better communication. Regarding claim 2, Complainant maintains that S1 pushed him in his chest, and berated him over his EEO complaints. He contends that SSM1 witnessed the incident, testifying that he saw that S1 thumped him in the chest while yelling at him. Complainant asserts that S1 has shown animus towards Hispanics and the Mexican culture. He contends that SMM1 testified that S1 made statements in his presence, such as "I'm tired of [expletive] Mexicans. I don't like Mexicans, and I don't like their food." Complainant also alleges that SMM1 testified that he heard S1 call Mexicans "taco blender." With respect to claim 3, Complainant asserts that he and the SMM1 were passengers in a government vehicle driven by another Sheet Metal Mechanic (SMM2). According to Complainant, they used the Government Vehicle to attend a unit-sponsored barbeque, but were nevertheless threatened with a 30-day suspension over their use of the vehicle. Complainant argues that several other employees, who had not engaged in prior protected EEO activity, were allowed to use government vehicles for personal use and even go off base.
In addressing claim 4, Complainant claims that his previous supervisor took his key from him, which was never returned. Complainant believes that S1 refuses to give him a key until his EEO issues are resolved. With regard to claim 5, Complainant maintains that S1 made him work on the C-17 project alone, which was a two-man job. Complainant asserts that SMM1 was originally his partner, but S1 pulled him off the project. Complainant cites to the testimony of a Machinist who stated that he (Complainant) was forced to work outside his area of expertise, and that they assigned him (Complainant) to the project maybe to punish him. Complainant asserts that the Machinist also testified that S2 made his job twice as difficult by not giving him the necessary equipment or personnel to perform the job. With respect to claim 6, Complainant maintains that he and other Hispanic employees were denied light duty while two non-Hispanic employees were given light duty. Regarding claim 7, Complainant believes there is no logical reason for S1 to make a negative comment about his performance for his work product that happened three years earlier.
With regard to claims 8, 9, and 10, Complainant maintains that he was subjected to a hostile work environment by S2. Complainant cites to the investigative affidavit of a Machinist who expressed his belief that S2 has a problem with Hispanic employees. Complainant contends that S2 subjected him to verbal abuse, and no other employees were singled-out or yelled at as he was. Complainant contends that various employees have affirmed that they have witnessed S2 raise his voice at him on more than one occasion. Complainant further asserts, with regard to claim 11, that a Machinist saw an email face-up on S2's desk with his personal information concerning guidance regarding his request for light duty. As for claim 12, Complainant contends that management officials told the Colonel that his EEO complaints were a ploy to get him transferred or reassigned. Complainant further asserts that non-Hispanic employees with no EEO activity received the reassignment. Regarding claim 13, Complainant claims that he has still never been provided with a key for Hanger 84. With respect to claim 14, Complainant asserts that S2 became upset when he saw Machinists helping him, and a Machinist told S2 that Complainant was being set up for failure by making him use the drill press with those tolerances. As for claim 15, Complainant states that he worked five months as a Welder outside of his position description, but never received credit for the work. Complainant asserts that another employee got credit for work as a welder and was subsequently promoted thereafter.
In response, the Agency requests that we affirm its final order adopting the AJ's decision.
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).
ANALYSIS AND FINDINGS
Hostile Work Environment
In order to establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected class; (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, 632 F.2d 397 (11th Cir. 1932). In order to meet the requirements of prong 4, 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
We note that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues (Aug. 25, 2016); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter employees from engaging in protected activity, Lindsey v. U.S. Postal Serv., EEOC Request No. 05930410 (Nov. 4, 1999).
In the instant case, after careful review of the record, we discern no basis to disturb the AJ's finding that Complainant failed establish that he was subjected to a hostile work environment based on national origin, disability, and/or reprisal. In so finding, we note that Complainant was only counseled three times over a two-year period for his cell phone use. In addition, another employee averred that Complainant "is one of the biggest users of his cell phone." ROI, at 493. With regard to Complainant's claim that S1 aggressively mentioned his EEO activity and pushed him, we note that the AJ did not find Complainant's testimony believable based on his demeanor and the evidence presented in the record. The AJ also did not find SMM1's testimony believable on this point.
We note that the credibility determinations of an AJ are entitled to deference due to the AJ's first-hand knowledge, through personal observation, of the demeanor and conduct of the witnesses at the hearing. See Shu v. Dep't of the Treasury, EEOC Appeal No. 0120102346 (Jan. 23, 2012), req. for recon. den'd, EEOC Request No. 0520120325 (June 21, 2012) (citing Esquer v. U.S. Postal Serv., EEOC Request No. 05960096 (Sep. 6, 1996)). We do not find evidence in the record here to undermine the AJ's determination that Complainant testimony was not believable with respect to the alleged September 15, 2011, matter. We note that SMM1 provided a written statement on September 20, 2011, but made no mention that S1 said anything about Complainant's EEO activity. In addition, another employee present averred that he did not witness anything that would draw his attention. ROI, at 494. We see no reason to disturb the AJ's findings with respect to claim 2.
In addition, with respect to claim 3, there is no dispute that Complainant was never disciplined for the use of the government vehicle, as he was a passenger, not the driver of the vehicle. As for Complainant not being issued the key at issue in claims 4 and 13, there is no dispute that Complainant was previously issued a key at some point for Hanger 84. We can find no persuasive evidence that Complainant's supervisor intentionally took his key due to his EEO activity, and there is no dispute that Complainant was no longer assigned to Hanger 84. Further the C-17 project was located under a huge tent and not in Hanger 84. We note that another employee averred that he saw no reason why Complainant would need a key. ROI, at 532, Also, while the work on the C-17 project was difficult and laborious, there is simply no evidence that management's actions surrounding Complaint's work on the project were motivated by discriminatory or retaliatory animus. In so finding, we note that the record reflects that all employees were required to reuse drill bits until they could no longer be sharpened before they were replaced. There is also no evidence that management intentionally hid the cooling oil from Complainant to make the job more dangerous. In addition, as soon as Complainant was injured, he was pulled off the project and provided with light duty. While Complainant may have been denied light duty earlier in June 2011, we note that his doctor wrote that he was "totally incapacitated," therefore it was unclear what work Complainant could perform at the time. ROI, at 419.
With regard to claim 7, like the AJ, we note that Complainant was not disciplined and suffered no consequences when his work on the previous project was discussed. With respect to Complainant's allegations that S2 harassed him by yelling at him and singling him out (claims 8, 9, 10, and 14), we note that another Machinist (non-Hispanic) averred that S2 is simply a bully who intimidates many employees. ROI, at 535-536. The Machinist averred that he witnessed S2 bully a Caucasian employee as well, and he also has been the subject of S2's bullying. Id.
The image which emerges from considering the totality of the record is that there were conflicts and tensions with S2's management style that left his subordinates feeling aggrieved. The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603 (no discriminatory animus found when supervisor used profanity) (citing Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670 (N.D. Cal. 1980)). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)("Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination."). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. There is nothing in the record to show that management was motivated by discriminatory or retaliatory animus with regard to claims 12 and 15.
Having considered the record as a whole, including evidence not specifically referenced, we conclude that the Agency's actions were not the result of prohibited discrimination, including reprisal. Engaging in protected activity does not immunize a complainant from being appropriately directed by a supervisor, or excuse a complainant from being productive. Nor does it guarantee a complainant from being exposed to mean-spiritedness, unconnected to a protected basis. 3
Improper Medical Disclosure (Claim 11)
Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14. These requirements also extend to medical information that an individual voluntarily discloses to an employer. See 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 26, 2000) (Guidance I). The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired or the employment relationship ends. See ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, at 18 (October 10, 1995) (Guidance II). These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. See Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003); Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (Jan. 11, 2011), req. for recon. den'd, EEOC Request No. 0520110302 (Apr. 29, 2011).
The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement: supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14; Guidance I, at 4. The Commission has also interpreted the ADA to allow employers to disclose medical information to state workers' compensation offices, state second injury funds, workers' compensation insurance carriers, and to health care professionals when seeking advice in making reasonable accommodation determinations. Guidance I, at 4 n.10. Additionally, employers may use medical information for insurance purposes. Id.
In the instant case, we find that the AJ improperly analyzed claim 11. As noted earlier, the Agency's obligation to keep certain medical information of its employees confidential applies to all employees regardless of disability status. Although not all medically related information falls within the confidentiality provision, "documentation or information concerning 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." Lampkins v. U.S. Postal Serv., EEOC Appeal No. 0720080017 (Dec. 8, 2009) (citations omitted). As noted above, the ADA only allows for the release of an applicant or employee's medical information in limited circumstances. Here, the record reflects that S2 left email correspondence dated April 3, and March 27, 2012, between S1 and the Civilian Personal Office about Complainant's request for light duty face-up on a table next the hard drive in his office. In the email, S1 specifically wrote:
We have an individual, [Complainant], who was injured on the job back on November 9, 2011. The result was surgery on his knee which has left him on light duty with no kneeling or climbing, and limited walking and standing. This prohibits him from most activities in his regular job. His return to work and subsequent term of light duty is past the 40 day mark and we are fast running out of assignable light duty work for [Complainant]. Can you provide us with some suggestions on what option are available to us?
ROI, at 429
As noted, a Machinist entered S2's office to use the shared hard drive that everyone uses, and he saw the above email sitting next the hard drive. We note the Machinist mentioned that employees regularly enter S2's office to go for items. The Machinist was concerned that Complainant's personal medical information was out-in-the open for everyone to see.
Accordingly, based on the Agency's disclosure of information about Complainant's medical condition, we find that the Agency has violated the Rehabilitation Act. See 29 C.F.R.
� 1630.14(c). Although such disclosure may have been inadvertent, it nevertheless constitutes a violation of the Rehabilitation Act. See Forde, EEOC Appeal No. 01A12670 (citing Valle v. U.S. Postal Serv., EEOC Request No. 05960585 (Sep. 5, 1997)). We do not find any persuasive evidence that the Agency's disclosure was based on reprisal for Complainant's prior protected EEO activity or his national origin.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and direct the Agency to comply with the ORDER below.
ORDER
The Agency is ORDERED to undertake the following actions within one hundred and twenty (120) calendar days from the date this decision becomes final:
1. The Agency shall provide EEO training to the management official identified as S2 herein, focusing on the Agency's obligation under the Rehabilitation Act to keep medical information confidential;
2. The Agency shall consider taking disciplinary action against S2 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 reasons(s) for its decision not to impose discipline;
3. The Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 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 � 1614.110.8.
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 Air Education and Training Command, Trainer Development Division, Randolph Air Force Base facility 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
10-19-2017
__________________
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 We note that the AJ's decision did not directly address claims 8, 9, and 12. We however find that the AJ's error is harmless under the present circumstances, as a review of the record does not show that Complainant was subjected to discrimination as alleged with respect to these claims.
3 Although the AJ also analyzed Complainant's claims under a disparate treatment theory as well, we find the claims are more properly addressed as a hostile work environment. Nevertheless, we find that at all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency acted on any prohibited basis in engaging in the conduct being challenged. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 153 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant has not done so. Therefore, we find that the AJ's decision is supported by substantial evidence in the record here.
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