[Redacted], Josefina L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022004454 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josefina L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004454 Hearing No. 420-2019-00241X Agency No. 1G-391-0015-18 DECISION On August 17, 2022, 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 June 22, 2022 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, Grade 6, at the Agency’s Processing and Distribution Center in Gulfport, Mississippi. On September 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability (injured left shoulder), age (45), and reprisal for prior protected EEO activity when: 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. 2022004454 2 1. On June 7, June 25, July 26, and August 1, 2018, management disclosed Complainant’s medical condition to her coworkers; 2. On June 19, 2018, while on break, Complainant’s supervisor [(“Supervisor 1”) (Black/African American, female, no claimed disability, 38 years old)] reprimanded Complainant for her cell phone usage; 3. On July 23, and 26-27, 2018, Complainant’s work hours and/or leave were not properly entered to the timekeeping system; 4. On July 23, 2018 through August 1, 2018, Complainant was clocked out while on break; 5. On July 23, 2018, Complainant became aware that management discussed her EEO complaint with coworkers; 6. On July 26, 2018, Complainant was subjected to an official discussion; and, 7. On July 26, 2018, Complainant was informed that she must take her lunch and break during a 3-hour time frame. 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 assigned to the case granted the Agency’s February 5, 2020, motion for a decision without a hearing. On June 9, 2022, the AJ issued a brief, single-page decision. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 2022004454 3 An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Unauthorized Disclosure of Confidential Medical Information The Rehabilitation Act prohibits disclosure of confidential medical information except in certain limited situations, including when managers need to be informed regarding necessary accommodations. 29 C.F.R. § 1630.14(c). Consequently, where unauthorized disclosure of medical information is at issue, it is not necessary to prove the existence of a discriminatory motivation in order to establish a violation of the Rehabilitation Act; mere disclosure of such information without justification is enough. See e.g. Velva B., et al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); req. for reconsid. den'd EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). According to Complainant, on June 7, 2018, she saw her Duty Status Report Form CA-17, a form that lists an employee’s physical limitations due to a medical condition, lying on Supervisor 1’s desk, where others could have seen it, while Supervisor 1 was away from her desk. While Complainant’s affidavit is ambiguous regarding whether others actually saw the document, in her formal complaint she described pointing it out to a Lead Clerk/Union Representative (“Lead Clerk”) (race, age, and disability unknown, male) who told her to bring it to Supervisor 1’s attention. Complainant averred that when she found Supervisor 1, she repeatedly denied leaving the document out until the two of them went back to Supervisor 1’s office. When Supervisor 1 saw the document on her desk, she returned it to a drawer without locking it. Thereafter, on June 25, 2018, Complainant attested Supervisor 1 called her into Supervisor 1’s office to reprimand her. When she arrived, Complainant saw two other employees leaving the office. Supervisor 1 picked up some papers from her desk and handed them over to Complainant. According to Complainant, among the papers was an email from another individual (“Individual”) (female, race, disability, age unknown) who’s work position is unspecified in the record. Individual had sent the email to Supervisor 1, and it included “a copy of my hospital bill, Claim [sic] stating approved, and job offer.” 2022004454 4 As for the July 26, 2018, incident, Complainant averred that a coworker was waiting for her to label a flat sorter. When Complainant informed the coworker that she had been busy elsewhere, and that she didn’t think it was her job to label flats, the coworker “informed me that [Supervisor 1] told her it was my job because it was in my job offer.” The instant record does not contain any sworn testimony by Complainant, regarding the August 1, 2018 incident, as it appears that the investigator failed to ask her about the event. However, in her formal complaint, Complainant alleged that Lead Clerk approached her before entering the workplace and warned her that Complainant’s coworkers were “very angry” with Complainant after being shown an email that had been sent to Supervisor 1 by the Plant Manager/Operation Support Specialist (“Supervisor 2”) (white, female, no claimed disability, age unknown). According to Complainant, Lead Clerk told her that the email had been printed out by Supervisor 1 who then showed it to two of Complainant’s coworkers (“Coworker 1 and Coworker 2”) (both female; race, disability, and age all unknown for both). In addition, the printed email was left “on the manual flats” where a third coworker (“Coworker 3”) (male, race disability and age unknown) saw it and showed it to Lead Clerk. Complainant’s formal Complaint described Lead Clerk as saying the email “pertain[ed] to my [physical] limitations, job offer and coworkers doing their jobs.” Complainant further explained that she contacted Supervisor 2 about the email and that She was upset said [sic] she did send it to [Supervisor 1] and [Supervisor 1] should have never given a copy out. I asked her if I could please have a copy of the email so I could see why everyone was so upset with me. She said she would just as long as I didn't give copies out. However, according to Complainant, she was never given a copy of the email in question. Following a review of the record we note that, with regard to the June 7, 2018 incident, Complainant does not allege that anyone else saw her medical information, only that Supervisor 1 left it out on her desk “in the open unsecure.” Therefore, we find that Complainant has not shown that Supervisor 1 disclosed her medical information on June 7, 2018. As for the June 25, 2018 incident, Complainant does not claim that Supervisor 1 showed the email containing Complainant’s hospital bill to the other two coworkers who had been in Supervisor 1’s office, or that these two coworkers saw the email or became aware of its contents. Rather, Complainant only contends that the coworkers were in Supervisor 1’s office and the document was on Supervisor 1’s desk. This is insufficient to establish that Supervisor 1 disclosed Complainant’s medical information. Regarding Individual, the sender of the email, Complainant has identified this person by name but not by position, and hence we are unable to find that Individual was not authorized to know about Complainant’s medical information. We note in this regard that, according to Complainant, the email also contained a job offer and a notification stating that Complainant’s “claim” had been “approved.” 2022004454 5 As such, it appears that the email was sent by a Human Resources employee to notify Supervisor 1 that Complainant’s efforts to obtain a limited duty job offer had been approved. In such circumstances, Individual’s knowledge of Complainant’s medical information would not constitute a violation. While the evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor, see Anderson, 477 at 255, the non-moving party still has to present some evidence. Here, however, Complainant has provided no evidence, indeed has not even alleged, that Individual was not authorized to see Complainant’s medical information. With respect to the July 26, 2018 incident, Complainant merely alleges that coworkers from her new job offer were told about her duties in the context of a dispute between the employees regarding which tasks each employee was supposed to carry out. We find such a scenario does not constitute improper disclosure of medical information. Finally, as to the August 1, 2018 incident, the record reflects that both Coworkers 1 and 3 denied, in sworn statements, seeing Complainant’s medical information. The investigator averred that no one with Coworker 2’s name could be located. Complainant, meanwhile, does explicitly claim that Coworkers 1, 2, & 3 were shown her medical information. Instead, in an unsworn statement, Complainant states that she was told that these coworkers learned about her work limitations. We find that this is insufficient to create a material issue of fact requiring a full hearing regarding whether or not Coworkers 1, 2 and 3 were told about Complainant’s medical information. We have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on her pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). In the instant case, we find Complainant’s unsworn statement in her formal complaint to be insufficient to raise a material issue. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 2022004454 6 Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established a prima facie case of discrimination based on reprisal when Supervisor 1 discussed Complainant’s EEO activity with Complainant’s coworkers, Complainant’s work hours and/or leave were not properly entered to the timekeeping system, and Complainant was clocked out while on break. With regard to Complainant being reprimanded for cellphone usage and subsequently being given an official discussion regarding her repeated failure to respond to being paged, however, we find that Complainant does not allege, and the record does not reveal, that either action resulted in documentation being placed in Complainant’s official record or made part of her permanent disciplinary record. As such we find these claims were not adverse employment actions and hence fail to state claims of disparate treatment. See, e.g., Ball v. United States Postal Service, EEOC Appeal No. 01A40996 (March 17, 2004) (finding that a verbal reprimand and interview for discipline is not enough to state a claim). Further, these events are not reasonably likely to deter EEO activity. See Mitchell v. U.S. Postal Service, EEOC Appeal No. 0120121322 (June 15, 2012)(investigative interview on Box Mail Section’s standard operating procedures and being forced to work alone not reasonably like to deter EEO activity). We next find, with respect to claims 3, 4, and 5, that the Agency articulated legitimate nondiscriminatory reason for its actions. The record reflects that Supervisor 1 denied discussing Complainant’s EEO activity (claim 5), averring instead that it was Complainant who discussed her EEO activity with her coworkers, who then came and discussed the matter with Supervisor 1. Supervisor 1 further averred that she simply listened to their comments “because all my employees know I have an open door policy.” With regard to Complainant’s work hours and/or leave not being properly entered into the timekeeping system (claim 3), we note that while Complainant alleged in her complaint that she incurred financial hardship, during the investigation she conceded under oath that the discrepancy was corrected just a few days later by Supervisor 2. Supervisor 1 averred that she entered Complainant into the timekeeping system as being on Leave Without Pay (LWOP) because Complainant had called in asking to take sick leave and when she subsequently returned to work, while she provided documentation showing that she had been seen by her physician, the documentation did not say Complainant had been unable to work. 2022004454 7 As for being clocked out while on break (claim 4), Supervisor 1 attested that she had been approached by another employee asking for help with labels and, in response, Supervisor 1 sought out Complainant. Supervisor 1 walked the plant looking for Complainant and paged her twice, waiting 15 minutes between pages in case Complainant had been on a break. After the second unsuccessful page, Supervisor 1 again walking the floor but still did not locate Complainant. Consequently, explained Supervisor 1, she clocked Complainant out “because [Complainant] wasn’t working in the building.” With the Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. While Complainant disagrees with Supervisor 1’s version of events, she has not met her burden of establishing, by a preponderance of the evidence, that discrimination or reprisal occurred. Nor do we find that the contradictory versions of the incident told by Complainant and Supervisor 1 to be sufficient to raise a material issue warranting a full hearing. See Anderson, at 247. Harassment Complainant alleges the following acts of harassment occurred: Supervisor 1 reprimanded Complainant for her cell phone usage despite Complainant being on her break; Complainant’s work hours and/or leave were not properly entered to the timekeeping system; Complainant was clocked out while on her break; Complainant was subjected to an official discussion; and Complainant was informed that she must take her lunch and break during a 3-hour time frame. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with *her/his* work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022004454 8 Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions alleged either involved or were based on her protected bases. Nor do we find that the actions were sufficiently severe and/or pervasive so as to alter the terms and conditions of Complainant’s employment. We therefore find that Complainant has not shown that harassment occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that the Agency disclosed her medical information, or that retaliation or harassment occurred, and we AFFIRM the final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2022004454 9 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022004454 10 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 October 31, 2022 Date