Amy M. Brew, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency. Appeal No. 0120090045 Agency No. P-2007-0271 DECISION On September 30, 2008, Complainant filed an appeal from the Agency’s September 16, 2008, 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. ISSUES PRESENTED 1. Whether the Agency erred in finding that Complainant’s supervisor did not subject her to hostile work environment harassment on the basis of disability when the supervisor (1) yelled at Complainant upon learning that she would soon go on disability retirement, and (2) re-recorded a voice message for Complainant that informed callers that Complainant had applied for disability retirement. 2. Whether the supervisor improperly disclosed confidential medical records in violation of the Rehabilitation Act when she re-recorded Complainant’s voice message so that it notified callers that Complainant had applied for disability retirement. BACKGROUND Complainant worked as an Assistant Administrator in the Health Services Department at the Federal Correctional Institution in Elkton, Ohio. Complainant suffered from Reflex Sympathic Dystrophy, which caused her right leg to swell and discolor and sometimes made it painful for her to walk.1 In January 2007, one of her doctors recommended that she request medical retirement due to her condition. On January 22, 2007, Complainant spoke with the warden of the facility about applying for medical retirement. She also emailed her supervisor to let her know that she had submitted the retirement paperwork. The supervisor replied to the email, asking when her last day was. Complainant responded that she did not know yet because she was waiting for approval. On February 20, 2007, Complainant presented two doctors notes to her supervisor. One was from her OB/GYN, who requested that Complainant take leave that week due to increased blood pressure. The second was from her anesthesiologist who treated her Reflex Sympathic Dystrophy. He only wrote in his note that Complainant would be “permanently totally disabled beginning 3-2-07.” According to Complainant, her supervisor threw the notes on the desk and screamed that this was ridiculous and that Complainant was trying to kill her. Complainant’s Affidavit (aff.) at 10. The supervisor then called the Employee Services Manager, and then called Complainant back in to her office. The supervisor informed Complainant that the doctor’s notes were not adequate, that the documentation needed to specify what Complainant’s medical restrictions were to ensure that Complainant could safely perform her duties in the prison facility. According to Complainant, the supervisor continued screaming that Complainant was ridiculous and accused Complainant of “faking.” She would not grant Complainant’s request for leave until she presented a formal letter from her doctor. Complainant left. She spoke to other officials about her leave request, and eventually the Employee Services Manager granted her leave for the rest of the week. At the end of that week, Complainant found out that her supervisor had re-recorded her telephone voice message to say: “You have reached the Health Services Department at FCI Elkton. This is [Complainant’s] office and she’s put in her paperwork for a medical retirement. She is on continual leave until that time. If you need assistance please contact [supervisor] . . . .” Union Chief Steward aff. at 9. Complainant notified the union, which in turn notified management of the message. The following Monday, the message was re-recorded so that it did not disclose that Complainant had applied for medical retirement. On March 30, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of physical disability when: 1. she was subjected to abusive language; 2. her supervisor left a voice message on her phone extension, releasing personal health information to the public; 3. she was denied annual leave after her doctor told her she was unable to work. The Agency dismissed claim 3 for mootness because the Employee Services Manager had granted Complainant’s leave request. The Agency accepted claims 1 and 2 for investigation. It defined the claims as whether Complainant was subjected to a hostile work environment on the basis of physical disability when, on February 20, 2007, her supervisor subjected her to abusive language, and on February 24, 2007, her supervisor left a voice message releasing personal health information to the public. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 discrimination as alleged. The Agency found that Complainant did not establish that the unwelcome conduct at issue was based on Complainant’s disability or was sufficiently severe to constitute hostile work environment harassment. CONTENTIONS ON APPEAL Complainant did not submit a statement in support of her appeal.2 ANALYSIS AND FINDINGS The Commission reviews de novo an agency’s final decision that is issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. § 1614.405(a). “The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission’s own assessment of the record and its interpretation of the law.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999). We first examine whether the supervisor’s re-recording of Complainant’s voicemail, indicating that Complainant had applied for medical retirement, constitutes a per se violation of the Rehabilitation Act. The Americans with Disabilities Act of 1990 (ADA)3 requires employers to treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14. Such information includes any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee. 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). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). Here, the Commission finds that the supervisor’s disclosure of Complainant’s application for medical retirement does not constitute an improper disclosure of confidential medical records. The recorded message did not disclose information about Complainant’s medical condition, her past medical history, or treatment options. Complainant has not cited any previous federal sector cases or federal court cases that have held that such a disclosure constitutes a per se violation. As such, even though it may have been unwise for the supervisor to announce to other callers in the recording that Complainant had applied for medical retirement, the fact that she did not disclose any information about Complainant’s specific medical condition means that there is no per se violation. Next, we address Complainant’s hostile work environment harassment claim. To establish hostile work environment harassment, Complainant must show five things. First, Complainant must be a member of a statutorily protected class. Second, Complaint must show that she was subjected to unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on Complainant’s statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Assuming, for the sake of argument, that Complainant established the first three elements of a hostile work environment claim, we find that she did not establish the fourth element. In determining whether unwelcome conduct was sufficiently severe or pervasive, the Commission evaluates the harasser’s conduct 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). Since hostile work environment harassment takes a variety of forms, many factors may affect this determination, including: whether the conduct was verbal or physical, or both; how frequently it was repeated; whether the conduct was hostile and patently offensive; whether others joined in perpetrating the harassment. Unless the conduct is quite severe, a single incident or isolated incidents of offensive conduct or remarks generally do not create an abusive environment. We find that, from the objective viewpoint of a reasonable person in Complainant’s circumstances, the supervisor’s shouting on February 20, 2007, that this was ridiculous, that Complainant was killing her, and that Complainant was “faking,” was not sufficiently severe to create an abusive environment. First, the unwelcome conduct consisted only of verbal conduct. Second, the content of the supervisor’s shouting was not inherently hostile or patently offensive; the supervisor did not swear at Complainant or use derogatory terms or epitaphs that could demean a person with a disability. As such, we find the single incident of shouting at Complainant on February 20, 2007 was not sufficiently severe to create an abusive environment, from the objective viewpoint of a reasonable person in Complainant’s circumstances. Nor do we find the voice-message to be severe enough to constitute an abusive environment. While most of the witnesses agreed that they found it inappropriate to disclose to others an application for medical retirement because it involves a personal matter, the contents of the message itself was not inherently hostile, derogatory, or patently offensive. Complainant claims that the supervisor had used a sarcastic tone, but other witnesses who heard the message were not so sure. In any event, because of the short duration of the recording (the Agency quickly removed it the following Monday), and lack of patently offensive content in the recording, we find that the recording was not sufficiently severe or pervasive enough to constitute hostile work environment harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order, finding that Complainant did not sufficiently show that she had been subjected to hostile work environment harassment on the basis of physical disability. 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 (November 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 ____9/13/11______________ Date 1 In addition, Complainant sustained a work-related injury in 2001 to her right leg and was out for six months before returning to work. 2 Because Complainant did not specifically challenge the Agency’s dismissal of her annual leave claim on appeal (claim (3)), the Commission exercises its discretion to not address whether the Agency properly dismissed that claim. The dismissal is therefore AFFIRMED. 3 The Rehabilitation Act was amended so that the standards under Title I of the ADA would be applied to employment discrimination cases under the Rehabilitation Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120090045 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120090045