0120093382
08-05-2011
Stephanie A. Hirst, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Stephanie A. Hirst,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093382
Agency No. SF-07-0384-SSA
DECISION
Complainant filed a timely appeal from the Agency’s June 23, 2009,
final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
Whether Complainant proved that the Agency subjected her to harassment
on the basis of disability and constructively discharged her from her
position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Service Representative at the Agency’s San Diego, California
Field Office. Complainant held this position from September 28, 2005,
until she resigned from the Agency on July 13, 2007.
On December 20, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of disability (Bipolar
Disorder, Sinus Problems, and Chronic Back Pain) when:
1. In January 2007, Complainant was harassed about taking leave because
of the stomach flu, criticized for using her leave to visit family out of
town, and told that she was not a dependable employee. On February 22,
2007, the Agency issued Complainant a leave counseling memorandum;
2. On March 2, 2007, Complainant received a disability interview audit
review, which obtained negative comments and revealed errors; and
3. The Agency constructively discharged Complainant on July 13, 2007.
In an investigative affidavit statement, Complainant stated that an
Operations Specialist (OS1) encouraged her not to use sick leave except
for emergencies. Exhibit 6. Complainant stated that because she was a
relatively new employee, she did not have much sick leave, but she kept
track of her leave balances. Complainant stated because of health issues,
she used 109 hours of sick leave from January 2006 until February 22,
2007. Complainant stated that the Agency harassed her when it counseled
her on sick leave usage in a memorandum dated February 22, 2007.
Complainant stated that on January 11, 2007, OS1 told her that she was
not a dependable employee when Complainant submitted a leave slip to him.
Complainant stated that OS1 also said that Complainant had taken too
much time off of work and refused to sign her leave slip. She stated
that OS1 told her that she could not go home because another employee had
already called in sick that day, and Complainant did not have any leave.
Complainant stated that when she subsequently submitted her leave slip
to OS1 again, he signed it, and she went home.
Complainant also stated that on March 2, 2007, OS1 presented her with an
interview audit that noted errors in her work, including Complainant’s
failure to print names next to illegible signatures on forms. Complainant
further stated that the interview audit said that Complainant improperly
conducted interviews and confused patients, which was false because she
closed interviews by asking claimants if there was anything she could
do to help them.
Complainant further stated that on March 16, 2006, another Operations
Specialist (OS2) gave her only a “satisfactory” rating on her
evaluation in the Interpersonal Skills element because Complainant ate
lunch with her husband instead of trainees and stated that Complainant
was not a team player. Complainant also stated that while she attended
training, OS2 also stated she was surprised that many trainees were
hired because of the way they completed their Human Resources paperwork.
Additionally, Complainant stated that the District Manager told a
co-worker (C1) and OS1 about her Bipolar Disorder. Complainant stated
that she learned then when she told C1 about her Bipolar Disorder, and
C1 stated that she already knew about it because the District Manager
had told her. Complainant stated that OS1 confirmed that the District
Manager told him about Complainant’s Bipolar Disorder and receipt of
Supplemental Security Income.
OS1 stated that he discussed Complainant’s leave balance with her
because the balance was getting very low. Exhibit 9. OS1 stated that he
issued Complainant a leave memorandum because she used leave faster than
she accrued it, and the pattern continued after he discussed the matter
with Complainant. OS1 stated that by January 16, 2007, Complainant
had exhausted all her sick leave. OS1 stated that he did not recall
saying that Complainant was not a dependable employee, and he approved
Complainant’s leave requests. He stated that the memorandum was issued
was strictly to counsel her on the use of leave.
OS1 further stated that interview audits occur when a first-line
supervisor observes an employee conducting an interview of a member of
the public. OS1 stated that during the interview audit, he observed
Complainant making errors, which he noted so that she could improve her
interviewing skills.
OS1 stated that he never had a conversation with the District Manager
about Complainant’s medical condition. The District Manager stated
that she never discussed Complainant’s medical condition with other
employees.
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). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to unlawful harassment
because the alleged actions were not severe or pervasive enough to
constitute a hostile work environment, and there was no evidence that
the Agency’s actions were related to her disability. Additionally, the
Agency found that Complainant failed to prove that the Agency improperly
disclosed her medical information and constructively discharged her from
the Agency. The instant appeal followed1, with neither party filing
comments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(MD-110) at Chap. 9, § VI.A. (November 9, 1999) (explaining that the de
novo standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
To establish a claim of hostile environment harassment, Complainant must
show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on her statutorily protected 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 agency. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). 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). Further,
the incidents must have been “sufficiently severe and 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); Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In this case, for purposes of analysis and without so finding, we assume
that Complainant is an individual with a disability and established
a prima facie case of discrimination. Nonetheless, we find that the
alleged actions are not severe or pervasive enough to constitute a hostile
work environment. We further find that the Agency offered legitimate,
non-discriminatory reasons for each of its alleged actions, as set
forth in detail above. Complainant has not proven that the Agency’s
non-discriminatory explanations are pretext for unlawful discrimination.
Thus, we find that the Agency properly found that Complainant was not
subjected to the alleged actions because of her disability. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Constructive Discharge
Constructive discharge occurs when an employee resigns from her employment
because she is being subjected to unlawful employment practices. If the
resignation is directly related to the Agency's unlawful employment
practices, it is a foreseeable consequence of those practices and
constitutes a constructive discharge. The Agency is responsible for a
constructive discharge in the same manner that it is responsible for
the outright discriminatory discharge of a charging party. In order
to establish that she was constructively discharged from her position,
Complainant must show: (1) that her resignation resulted from the
agency's actions; (2) that the agency's actions were discriminatory;
and (3) that a reasonable person in her situation would have found
the agency's actions intolerable. See Malpass v. Dep’t of Veterans
Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, in order
to establish that she was constructively discharged, a complainant must
show that the agency's actions were discriminatory.
Here, Complainant contends that she was forced to resign on July 13,
2007, because she was subjected to harassment. However, we find that
Complainant was not constructively discharge because the alleged actions
were not based on her disability and not intolerable.
Medical Confidentiality
Generally, medical information must be kept confidential. See
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Guidance), EEOC Notice
No. 915.002 (rev. Oct. 17, 2002) (describing the limited exceptions to
the medical confidentiality requirements). Specifically, footnote 111
of the Guidance states as follows: “The limited exceptions to the ADA
confidentiality requirements are: (1) supervisors and managers may be
told about necessary restrictions on the work or duties of the employee
and about necessary accommodations; (2) first aid and safety personnel
may be told if the disability might require emergency treatment; and
(3) government officials investigating compliance with the ADA must be
given relevant information on request.
In this case, Complainant alleged that the District Manager informed
OS1 and C1 that she had Bipolar Disorder and received Supplemental
Security Income. However, the District Manager denied this claim, and
OS1 refuted Complainant’s claim that the District Manager divulged
Complainant’s medical information. Given the conflicting statements
of the parties, and with no basis to credit one over the other, we find
the evidence of a prohibited disclosure to be in equipoise. Therefore,
a violation has not been established.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
we AFFIRM the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 5, 2011
Date
1 We note that during her tenure with the Agency, Complainant was a
temporary employee under the Federal Career Intern Program. As such,
Complainant did not have appeal rights to the Merit Systems Protection
Board.
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0120093382
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093382