Sandra Andrews, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A24085 (E.E.O.C. Dec. 22, 2003)

01A24085

12-22-2003

Sandra Andrews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Sandra Andrews v. United States Postal Service

01A24085

December 22, 2003

.

Sandra Andrews,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01A24085

Agency Nos. 4F-913-0010-98, 4F-913-0087-00, 4F-913-0033-99,

4F-913-0066-99, 4F-913-1149-96

Hearing Nos. 340-99-3409X, 340-99-3904X, 340-A0-3187X, 340-A1-3195X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning her five equal employment opportunity (EEO) complaints of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final action.

BACKGROUND

Complainant, an agency employee since January 17, 1987, was employed

as a city carrier, PS-5, at the agency's Reseda Post Office in Reseda,

California. In 1991 or 1992, complainant developed sensitivity to

sunlight, and was diagnosed with Chronic Menopausal Syndrome. Complainant

began missing work frequently beginning in 1994, and was restricted to

working outside for three to four hours per day. From 1994 to 1997,

complainant continued working at the Reseda Post Office in a light duty

capacity, but over time, her ability to tolerate sunlight decreased.

Beginning in May 1995, complainant was restricted to indoor duties.

Also in 1995, two co-workers began making comments about complainant,

such as �You can go out today, it's cloudy,� �She's melting,� and �I wish

I could have menopause.� One of the co-workers making these comments was

serving a detail as the administrative assistant to the Reseda Postmaster.

The other co-worker was the administrative assistant's boyfriend.

They also commented that complainant was lazy and that she smelled.

Complainant contends that such remarks were made on a daily basis.

Complainant informed the union steward and the union steward trainee, as

well as the Reseda Postmaster about the incidents. The Reseda Postmaster

called one co-worker (the boyfriend to the administrative assistant)

into his office, telling him that if any further inappropriate comments

were made on the workroom floor, disciplinary action may be taken.

Another incident transpired in which the administrative assistant called

complainant a �snooty little twerp� and complainant responded that she

was a �fucking bitch.� The Reseda Postmaster was also informed about

this incident, and investigated it. In resolution of the problem, both

complainant and the administrative assistant agreed to treat each other

with mutual respect. Neither party was disciplined.

Complainant alleged that the detailed administrative assistant had access

to complainant's medical records. The Reseda Postmaster had the keys

to the locked file containing the medical records and contended that he

did not give the keys to the administrative assistant. Nevertheless, the

administrative assistant knew specific information regarding complainant's

medical condition, such as the number of hours which complainant could

work outside. On May 28, 1996, the Reseda Postmaster and the shop steward

signed an agreement that the agency would �cease and desist allowing

[the detailed administrative assistant] to input any information in the

3972 Book or review doctor notes or handle any medical information for

letter carriers.�

Complainant was absent from work approximately 50 percent of the time

between November 17, 1995, and January 17, 1996. On January 17, 1996,

the Acting Manager of Customer Services at the Reseda Post Office

sent complainant a letter advising her that she was being placed on

restricted sick leave (RSL), and informing her that she was required to

provide medical documentation with all sick leave applications, until

further notice. In resolution of a grievance filed by complainant,

she was taken off RSL on September 16, 1996.

On January 9, 1997, complainant stopped working due to stress.

Complainant's psychologist suggested that the stress resulted from

the guilt of not being able to do her job due to her outdoor work

restrictions. On April 11, 1997, complainant's psychologist sent a letter

to the agency, recommending that complainant seek disability retirement

due to her diagnosis of major depression. On December 30, 1997, however,

complainant's psychologist contacted the Office of Workers' Compensation

Programs (OWCP) and released complainant to return to work with the

following restrictions: (1) Complainant should not return to the Reseda

Post Office; (2) Complainant should return to work at a post office

in North Hollywood, Santa Clarita, San Fernando, Sun Valley, Panorama,

Studio City, Burbank, or Van Nuys; (3) Complainant should be permitted

to take leave when her emotional and physical conditions prevent her

from continuing to work on a particular day or period of time; and,

(4) She should continue to maintain her weekly psychological therapy

sessions. Complainant assumed that this letter was also sent to the

agency. Complainant took no further steps to return to work. On March

10, 1998, complainant's workers' compensation benefits were terminated

as there were no continuing residuals of the accepted condition of

work-related migraine headaches. On March 17, 1998, complainant applied

for disability retirement. On May 1, 1998, the Reseda Postmaster

sent complainant a letter reminding her to submit acceptable medical

documentation for her continuing absence since January 9, 1997.

On May 29, 1998, the agency's Supervisor, Customer Services, sent

complainant a letter informing her that it had received the medical

documentation provided by her psychologist regarding her inability

to perform her duties at the Reseda Post Office. The agency advised

complainant of her options, which were resignation, disability retirement,

or a request for voluntary reassignment to another office and/or craft

within her medical restrictions. The letter informed complainant

that if she did not contact the agency regarding her election, that

the agency may separate complainant for medical reasons. On June 25,

1998, the Supervisor, Customer Services, and the Reseda Postmaster issued

complainant a notice of separation. The notice charged that complainant

had not reported for duty since January 9, 1997, and had been on Leave

Without Pay (LWOP) status since February 19, 1997, in excess of one year.

According to the June 25, 1998 letter, complainant had failed to respond

to the agency's May 29, 1998 letter.

On July 8, 1998, complainant sent a letter to the District Manager, Van

Nuys District, and the Reseda Postmaster requesting voluntary reassignment

to another office and/or craft within her medical restrictions. On July

15, 1998, the Reseda Postmaster issued a letter informing complainant

that her removal would be held in abeyance in an effort to address her

reassignment request. On August 17, 1998, complainant was informed that

her March 17, 1998 application for disability retirement was denied.

On August 27, 1998, the agency issued complainant a reassignment offer.

The agency located a part-time flexible (PTF) position in the North

Hollywood Chandler Station (Chandler Station). According to the agency,

the reassignment was being done in compliance with complainant's medical

restrictions and as a result of complainant's July 8, 1998 reassignment

request.

Complainant began working at the Chandler Station around late November

1998. Complainant worked for a few days, and then was out sick with

the flu for two weeks. On complainant's first day back to work,

she hurt her back while bending and picking up bundles of flats, and

did not return to work. Complainant was examined on December 7, 1998

at the agency's occupational health center. The agency's physician,

a family practitioner, diagnosed complainant with lumbar strain with

clinical findings of mild low back pain, and stated that she could

return to light duty. The agency physician found that complainant was

temporarily partially disabled and imposed restrictions on complainant

of no lifting over 5 pounds, and no pushing or pulling, as well as

some other limitations. Complainant was also examined by her attending

physician, an orthopedic surgeon, who submitted a medical report to OWCP

dated January 4, 1999, finding that complainant was totally disabled and

needed physical therapy three times a week for two weeks. His diagnosis

was post traumatic aggravation of degenerative disc disease of the

lumbar spine. Complainant applied for workers' compensation on December

7, 1998, submitting reports from both doctors. Complainant's workers'

compensation claim also was initially denied, but the denial

was set aside on January 22, 1999, and OWCP accepted complainant's claim

for lumbar and thoracic strain.

On December 31, 1998, the Manager of Customer Services at the Chandler

Station sent complainant a letter informing her that she had not reported

for duty since December 7, 1998, and that she was considered to be in

AWOL status. She was instructed to report for duty or submit acceptable

documentation to substantiate her absence. The Manager of Customer

Services, believing the agency's physician to be the doctor of record,

ignored the medical documentation submitted by complainant's orthopedic

surgeon. On September 16, 1999, the Chandler Station Postmaster issued

complainant a 5 Day Notice to Return to Work. The notice instructed

complainant to report for duty or submit acceptable documentation to

substantiate her absence. It informed her that failure to follow these

instructions within five days of the letter's receipt would cause the

agency to take actions towards complainant's removal.

On December 1, 1999, complainant was examined by an injury compensation

doctor, who was also a board certified orthopedic surgeon. On December

14, 1999, the injury compensation doctor sent a medical report to the

Department of Labor, diagnosing complainant with chronic lumbar strain and

early stages of lumbar and thoracic spondylosis. The doctor concluded

that complainant was temporarily totally disabled until she received

further treatment and further recovery. He found that with further

recovery, she would have permanent restrictions to avoid heavy lifting

of not more than 15 to 20 pounds, and to avoid repetitive bending and

stooping. On February 11, 2000, the injury compensation doctor sent

a letter to the Department of Labor indicating that she essentially

could return to work in a light duty capacity that was compatible with

her medical restrictions. On March 8, 2000, complainant's orthopedic

surgeon submitted a report to the Department of Labor indicating that

complainant was unable to return to work due to her back injury.

On March 17, 2000, and March 20, 2000, the Manager, Customer Services

at the Chandler Station issued letters to complainant instructing her

to report to work with restrictions compatible with those set forth by

the injury compensation doctor. On March 27, 2000, the Manager notified

her that it considered her AWOL since March 18, 2000, and that if within

five days from the receipt of that letter, she did not return to work,

the agency would take further action, including up to removal. As part

of the agency's standard operating procedure, such five-day notices are

sent to employees who are out of work for medical reasons but have not

submitted medical documentation in a timely manner. At the time that

complainant received the five-day notice, she was receiving workers'

compensation. Complainant did not receive letters instructing her to

report to work after March 2000. Complainant was granted disability

retirement in September 2000.

Complainant sought EEO Counseling and filed five formal EEO complaints,

which were consolidated by the agency, pursuant to 29 C.F.R. � 1614.606.

In her formal complaints complainant made the following claims:

Complainant alleged that she was discriminated against on the bases

of age (D.O.B. September 30, 1943), disability (alleged impairments of

sensitivity to sunlight and depression), and in retaliation for prior

EEO activity when, on December 7, 1998, she was injured on the job and

not allowed to see her personal treating physician prior to seeing

the agency's contract doctor, her supervisor talked to the agency's

contract doctor outside of complainant's presence, her supervisor

remained in the office during her evaluation and told her that she

could not go home, and the following day she was told by her supervisor

that any physician she wanted to see must be cleared by her supervisor;

Complainant alleged that she was discriminated against on the bases

of disability (alleged impairments of back, shoulder and neck) and

in retaliation for prior EEO activity when her workers' compensation

claim was denied because management failed to submit all of her medical

documentation to the labor board;

Complainant alleged that she was discriminated against on the bases of

race (American Indian), national origin (USA/Cherokee), sex (female),

age (D.O.B. September 30, 1943), and disability (alleged impairment of

sensitivity to sunlight) when between June 1995 and January 1997 she

was taunted by co-workers who accessed her medical records and made

comments about them;

Complainant alleged that she was discriminated against on the bases of

race (American Indian), national origin (USA/Cherokee), sex (female),

age (D.O.B. September 30, 1943), and disability (alleged impairment of

sensitivity to sunlight) when from January 17, 1996 to September 16,

1996, she was placed on Restricted Sick Leave (RSL);

Complainant alleged that she was discriminated against on the bases

of sex (female), age (D.O.B. September 30, 1943), disability (alleged

impairments of sensitivity to light, depression), and in retaliation for

prior EEO activity when, following her doctor's release in December 1997,

complainant was not allowed to work with accommodation for her disability

until she was reassigned to the North Hollywood Post Office in September

1998, and, on May 29, 1998, she was notified that she should resign,

apply for disability retirement, or request reassignment; and,

Complainant alleged that she was discriminated against on the bases of

disability (alleged impairment of back injury) and in retaliation for

prior EEO activity when, beginning on March 17, 2000, management sent

her several letters ordering her to return to duty within five days

while she was on �total disability.�

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The agency filed a Motion

for a Decision Without a Hearing, pursuant to 29 C.F.R. � 1614.109(g).

On April 16, 2002, the AJ issued an Order granting, in part, the agency's

motion for a decision without a hearing. The AJ granted the agency's

motion for a decision without a hearing as to claims 1 and 2, finding

in favor of the agency, and held a hearing on claims 3 through 6.

Following the hearing on claims 3 through 6, the AJ issued a finding

of discrimination where the agency permitted a co-worker to have access

to complainant's medical records. The AJ found no discrimination as to

the remaining claims. As remedial action, the AJ ordered the agency to

post a notice to its employees that it will not tolerate retaliation for

engaging in protected activity. The agency implemented the AJ's decision

in its entirety. Complainant submits no additional statement on appeal.

The agency requests that we affirm its final action.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), the Commission reviews decisions

issued without a hearing under a de novo standard, and 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.

After a careful review of the record, we discern no basis to disturb

the AJ's finding of no discrimination with regard to claims 1, 2,

4, 5 and 6. We also discern no basis to disturb the AJ's finding

of discrimination with regard to claim 3. The findings of fact are

supported by substantial evidence, and the AJ, as was relevant to the

ultimate finding of discrimination, in part, and no discrimination, in

part, correctly applied the appropriate regulations, policies, and laws.

Claims 1 and 2

In contrast to the finding of the AJ we do find that claim 1 states

a claim. Nevertheless, we find that the AJ's issuance of a decision

without a hearing was appropriate with regard to claims 1 and 2.

There are no genuine issues of material fact with regard to those claims,

see Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003), and a preponderance of the record evidence does not establish

that discrimination occurred.

Claim 4

We will assume, for the sake of analysis, that complainant is an

individual with a disability as to her alleged impairment of sensitivity

to sunlight. A claim of disparate treatment based on indirect evidence

is examined under the three-part analysis first enunciated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail,

she must first establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Heyman

v. Queens Village Comm. for Mental Health for Jamaica Community Adolescent

Program, 198 F.3d 68 (2d Cir. 1999) (analyzing a disparate treatment

claim under the Rehabilitation Act); Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979) (applying McDonnell Douglas to ADEA cases); Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas

to reprisal cases). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). However,

if the agency has articulated a legitimate, nondiscriminatory reason

for its actions, i.e., complainant had been using excessive amounts of

sick leave, the inquiry may proceed directly to the ultimate issue of

whether complainant has shown that the agency's actions were motivated

by discrimination by a preponderance of the evidence. United States

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

The burden of persuasion, by a preponderance of the evidence, remains

at all times on complainant. Burdine, 450 U.S. at 256.

In her deposition, complainant testified that she was absent from work

approximately 50 percent of the time between November 17, 1995, and

January 17, 1996. According to the agency, it was due to complainant's

excessive undocumented absences that she was sent a letter on January 17,

1996, notifying her that she was being placed on RSL. Complainant had a

prior history of abuse of sick leave, as documented by a letter dated July

28, 1995, from complainant's supervisor at the time, placing her on RSL.

We note that on September 16, 1996, complainant was taken off RSL after

providing medical documentation for her absences. Agency employees

who are out for medical reasons are required to provide regular updated

medical information. The Commission agrees with the AJ's determination

of no discrimination, finding that complainant did not prove, by a

preponderance of the evidence, that the agency's articulated reasons

were not its true reasons, but were a pretext for unlawful discrimination

on the bases of disability, race, national origin, sex or age, and that

complainant failed to show that the agency's actions were motivated by

discriminatory animus on the articulated bases.

Claim 5:

Continuing to assume arguendo that complainant is an individual with

a disability with respect to the alleged impairment of sensitivity to

sunlight, as well as for the alleged impairment of depression, we find

that the agency has articulated legitimate, nondiscriminatory reasons

for issuing complainant the May 29, 1998 letter informing her to resign,

apply for disability retirement, or request reassignment, and, for not

returning complainant to work until September 1998. Complainant had not

been to work since January 9, 1997, when she left work due to stress,

which, according to her psychologist was caused by the guilt of not

being able to do her job. The psychologist submitted a report to OWCP

on December 30, 1997, releasing complainant to work at the agency,

but at a post office other than Reseda. There is no indication, beyond

complainant's assumption, that this report was ever sent to the agency,

or that complainant otherwise tried to contact the agency about returning

to work.

The Reseda Postmaster testified at the hearing that when an employee is

out for 21 days, the employee is sent a letter regarding his/her ability

to return to duty. The employee is asked to submit medical documentation

that is sufficiently detailed to allow for a medical evaluation by a

Postal Medical Officer. Therefore, on February 5, 1997, the Supervisor,

Customer Service, sent complainant a letter requesting medical

documentation to support her absence. Complainant did not respond.

On May 1, 1998, the Reseda Postmaster sent complainant a letter reminding

complainant to submit acceptable medical documentation for her continuing

absence, but complainant again did not respond. Finally, the Reseda

Postmaster sent complainant the May 29, 1998 letter, noting that it had,

by that point, received the medical documentation that her psychologist

had submitted to OWCP regarding her inability to perform her duties at

the Reseda Post Office. In the May 29, 1998 letter, the agency advised

complainant of her options, which were resignation, disability retirement,

or a request for voluntary reassignment to another office and/or craft

within her medical restrictions. The letter informed complainant that

if she did not contact the agency regarding her election, the agency

may separate her for medical reasons. Because complainant also did not

respond to the May 29, 1998 letter, the Supervisor, Customer Services,

and the Reseda Postmaster issued complainant a notice of separation on

June 25, 1998. Finally, on July 8, 1998, complainant sent a letter to the

District Manager, Van Nuys District, and the Reseda Postmaster requesting

voluntary reassignment to another office and/or craft within her medical

restrictions. Following complainant's request for reassignment, her

removal was held in abeyance, and, on August 27, 1998, the agency issued

complainant a reassignment offer. The agency located a part-time flexible

(PTF) position in the North Hollywood Chandler Station. Complainant began

working at the Chandler Station around late November 1998.

Thus, after an absence that had extended for over one year, and after

several letters that went unanswered requesting information regarding

her ability to return to duty, the agency issued complainant the May 29,

1998 letter, notifying her of her options. Once the agency became aware,

on July 8, 1998, that complainant was able and willing to return to work,

it immediately held her removal in abeyance, and in less than two months,

reassigned complainant to the North Hollywood Chandler Station, per her

request for voluntary reassignment and in accordance with her medical

restrictions. Complainant has not shown that the agency's actions

were motivated by discriminatory or retaliatory animus, or that the

agency's explanation is a pretext for discrimination. Complainant has

not established that discrimination occurred by a preponderance of

the evidence.

Claim 6

We find that claim 6 raises a claim of harassment on the bases of

disability and reprisal, rather than a claim of disparate treatment,

as it was analyzed by the AJ. It is well-settled that harassment based

upon an individual's disability and prior EEO activity is actionable. See

Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). We shall assume

again, for purposes of analysis, that

complainant is an �individual with a disability.� Additionally, at the

hearing, the Chandler Station Manager, Customer Services testified that

he was aware of complainant's prior EEO activity.

The record shows that two physicians came to different conclusions

regarding complainant's ability to work following her back injury.

The injury compensation doctor reported to OWCP on February 11, 2000,

that complainant could return to work in a light duty capacity that was

compatible with her medical restrictions. On March 8, 2000, complainant's

physician submitted a report to OWCP indicating that complainant could

not return to work because of her back injury.

It appears that the agency relied on the findings of the injury

compensation physician, who the Manager, Customer Services considered

to be an independent perspective, when the agency issued letters

to complainant in March 2000, instructing her to report to work in

five days. According to the Manager, Customer Services, however,

upon receiving complainant's physician's letter dated March 8, 2000,

he stopped sending the five day notices to complainant.

Although the five day notices were sent through March 27, 2000, and the

letter from complainant's physician was dated March 8, 2000, there is no

evidence that the Manager, Customer Services was aware of complainant's

physician's position that complainant should not return to work prior

to sending out the five day notices to complainant. We note that the

March 8, 2000 letter was sent to OWCP, and not the agency, and thus,

it would very likely take some time to reach the agency. Additionally,

complainant testified that she did not receive any letters after March

2000. The record contains five day notices that were sent to other

agency employees. Additionally, we note that there was no disciplinary

action taken against complainant for failing to respond to the letters.

Therefore, we find that based on the information that the agency had at

the time that it issued complainant the five day notices, such notices

were not without foundation and were not sufficiently severe or pervasive

to rise to the level of discriminatory harassment.

Claim 3

We affirm the AJ's finding of discrimination in violation of

the Rehabilitation Act with regard to the agency's disclosure of

complainant's confidential medical information. Our regulations provide

that information obtained regarding the medical condition or history

of any employee shall be treated as a confidential medical record.

29 C.F.R. � 1630.14(c). The Commission regards documentation of the

individual's diagnosis or symptoms as confidential medical information.

ADA Enforcement Guidance: Preemployment Disability-Related Questions and

Medical Examinations (October 10, 1995) at 22 n.26. The Commission holds

the position that disclosure of complainant's medical information in a

manner that does not conform to the conditions prescribed in 29 C.F.R. �

1630.14(c) constitutes a per se violation of the Rehabilitation Act.

See Valle v. United States Postal Service, EEOC Request No. 05960585

(September 5, 1997) (cited in Andrews v. United States Postal Service,

EEOC Appeal No. 01972506 (April 30, 1998), req.

for reconsideration denied, EEOC Request No. 05980824 (April 26, 2000));

see also EEOC Enforcement Guidance on the Americans With Disabilities

Act and Psychiatric Disabilities (March 25, 1997) at 17, question 15

(employers must keep all information concerning the medical condition

or history of its applicants or employees confidential). As one of the

few exceptions to this rule, supervisors and managers may be informed

of necessary restrictions on the work or duties of the employee and

necessary accommodations. 29 C.F.R. � 1630.14(c). We note that the

Rehabilitation Act does not limit the prohibitions against improper

disclosure of confidential medical information and improper medical

inquiries to individuals with disabilities. 29 C.F.R. � 1630.14(c).

We find that the agency violated the Rehabilitation Act when the detailed

administrative assistant to the Reseda Postmaster accessed complainant's

medical records. We find it unlikely that the administrative assistant

would have known about complainant's medical restrictions, such as her

sensitivity to sunlight, her migraine headaches, and the hours of work

that complainant missed as a result of her medical conditions, if she

did not access complainant's medical records, because complainant did

not tell others about her restrictions, and only the Postmaster, the shop

steward, and her supervisor should have had access to her medical records.

Moreover, had the administrative assistant not had access to the medical

records at some point, there would have been no need for the union steward

and the Reseda Postmaster to enter into an agreement to discontinue her

access to the medical records. Additionally, even if we assume that

complainant established by a preponderance of the evidence that she was

harassed on the bases of disability, race, national origin, sex or age,

when her co-workers made comments about complainant's sensitivity to

sunlight, we find that complainant would not be entitled to further

relief beyond that described below.

Compensatory Damages

Section 102(a) of the Civil Rights Act of 1991 authorizes an award

of compensatory damages as part of make-whole relief for intentional

discrimination in violation of Title VII. See 42 U.S.C. � 1981a.

Compensatory damages may be awarded for past pecuniary losses, future

pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. Compensatory

and Punitive Damages Available Under Section 102 of the Civil Rights Act

of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 4. Pecuniary losses

are out-of-pocket expenses incurred as a result of the employer's unlawful

action, including job-hunting expenses, moving expenses, medical expenses,

psychiatric expenses, physical therapy expenses, and other quantifiable

out-of-pocket expenses. Id. Non-pecuniary losses are losses that

are not subject to precise quantification, including emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to professional standing, injury to character and reputation,

injury to credit standing, and loss of health. Id. at 5.

To justify an award for emotional harm, there must be sufficient causal

connection between the agency's illegal actions, and the complainant's

injury. Id. at 5-6. The discriminatory act or conduct must be the

cause of the emotional harm. Id. An award of compensatory damages

for non-pecuniary losses should also reflect the nature and severity

of the harm and the duration or expected duration of the harm. Id.

Evidence of emotional harm may be established by testimony. Id. at 6.

A complainant's testimony may be solely sufficient to establish

emotional harm. Id. Although damage awards for emotional harm can

greatly vary, and there are no definitive rules governing amounts to

be awarded, compensatory damage awards must be limited to the amounts

necessary to compensate the complainant for actual harm, even if that

harm is intangible. Id. at 7.

The Commission concurs with the AJ's conclusion that complainant failed

to establish a causal connection between the agency's disclosure of

her confidential medical information and any emotional harm suffered.

Additionally, even if we assume that complainant was subjected to

discriminatory harassment, we find that she failed to provide sufficient

evidence to support a nexus between any emotional harm and the harassment.

Therefore, we find that the AJ appropriately declined to grant complainant

compensatory damages.

Declaratory Relief

We also find, however, that the AJ's order regarding declaratory

relief should be amended to include a notation that a violation of the

Rehabilitation Act has occurred at the agency. Such Notice to Employees

is contained at the conclusion of the Commission's decision. We also

find that training for the responsible management officials as well as

consideration of disciplinary action against the responsible management

officials is appropriate and necessary.

Accordingly, after a careful review of the entire record, we AFFIRM the

agency's final action, and we direct the agency to take action consistent

with the Order below.

ORDER

The agency is ordered to take the following remedial action:

The agency is to conduct training to the responsible officials at

the Reseda Post Office addressing their responsibilities under the

Rehabilitation Act.

The agency shall consider taking appropriate disciplinary action

against the responsible management officials. The Commission does not

consider training to be disciplinary action. The agency shall report

its decision to the compliance officer. 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 reason(s)

for its decision not to impose discipline. If any of the responsible

management officials have left the agency's employ, the agency shall

furnish documentation of their departure date(s).

If complainant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii)), she 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 this decision becoming

final. The agency shall then process the claim for attorney's fees in

accordance with 29 C.F.R. � 1614.501.

POSTING ORDER (G0900)

The agency is ordered to post at the Reseda Post Office in Reseda,

California, copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (M0701)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 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 (S0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 22, 2003

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an order by the United States Equal

Employment Opportunity Commission dated ___________ which found that a

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., has occurred at the agency's

Reseda Post Office (hereinafter this facility), in Reseda, California.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

This facility was ordered to provide the complainant all costs to which

the complainant may be entitled under federal law in connection with her

complaint, including proven attorney's fees and costs. This facility

will ensure that officials responsible for personnel decisions and

terms and conditions of employment will abide by the requirements of

all federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

This facility will comply with federal law and will not in any manner

restrain, interfere, coerce, or retaliate against any individual who

exercises his or her right to oppose practices made unlawful by, or

who participates in proceedings pursuant to, federal equal employment

opportunity law.

Date Posted: _____________________

Posting Expires: _________________

29 C.F.R. Part 1614