Spencer T., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120112516 Hearing No. 510-2010-00041X Agency No. 4H-335-0147-08 DECISION On April 14, 2011, Complainant filed an appeal from the Agency's March 15, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) finding of no reprisal discrimination; (2) whether substantial evidence in the record supports the AJ's finding of a violation of the Rehabilitation Act; and (3) whether the AJ provided Complainant with the appropriate remedies. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Gulfwinds Station in St. Petersburg, Florida. Complainant's First Level Supervisor was the Acting Supervisor, Customer Services (S1). Complainant's Second Level Supervisor was the Manager, Customer Services (S2). Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity (July 9, 2008 EEO settlement involving S1) when:1 1. From July 15-31, 2008, S1 subjected him to numerous street observations; 2. On August 15, 2008, S2 used his confidential medical information from an August 1, 2008 psychological evaluation in a request for a fitness-for-duty examination (FFDE); and 3. On August 18, 2008, S1 issued him a 14-day suspension. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing and the AJ held a hearing on August 24, 2010. The AJ issued a decision on February 2, 2011. Regarding claim 1, the AJ found the following facts: Street observations were a method of supervising carriers. On July 19, 2008 at 11:10 a.m., S1 conducted a formal observation of Complainant's driving practices. Later that day, Complainant received a phone call from a coworker informing him that S1 and S2 were heading his way. S1 and S2 arrived in S2's car moments later, but did not announce their presence immediately. S1 and S2 waved at Complainant, spoke to him, and expressed their expectation that he should return to the station by 5:00 p.m. On July 29, 2008 at 4:00 p.m., S1 observed Complainant but did not approach him. Complainant had phoned the station an hour earlier to inform another supervisor that he would not be returning to the station by 5:00 p.m. S1, who was already out in the field, was present to determine if Complainant truly needed the additional time he requested. Previously, in April and June 2008, the Agency had disciplined Complainant for not wearing his seatbelt and for intentionally failing to deliver mail. The AJ found no reprisal discrimination in claim 1. Specifically, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, informal or formal street observations were an integral part of carrier supervision. Moreover, the AJ found that Complainant failed to prove pretext. Although Complainant argued that S1 and S2 observed him excessively, the AJ found that the evidence did not establish that they observed him more often than other carriers. Even if S1 and S2 did observe Complainant more often than other carriers, the AJ found that the Agency would be justified in doing so because of his prior difficulties at work. Regarding claim 3, the AJ found the following facts: S1 issued Complainant a 14-day suspension for unsatisfactory performance. The suspension letter cited a July 29, 2008 incident when Complainant did not return to the station until more than an hour past his estimated time of 4:45 p.m. Agency policy required carriers to return from deliveries no later than 5:00 p.m. The suspension letter also cited a 7-day suspension that Complainant had received in June 2008. In an October 2, 2008 grievance settlement, the Agency and the union agreed to reduce the 14-day suspension to an official discussion. The AJ found no reprisal discrimination in claim 3. Specifically, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant's unsatisfactory performance as described in the suspension letter. Moreover, the AJ found that Complainant failed to prove pretext. The AJ found that the Agency justified the 14-day suspension as the next step in a progressive discipline scheme. Regarding claim 2, the AJ found the following facts: Complainant's union representative gave S2 the August 1, 2008 psychological evaluation as an attachment to Complainant's Form CA-2 (Notice of Occupational Disease and Claim for Compensation). S2 performed a cursory review of the documentation, drafted a controversion of the CA-2 claim, and forwarded the documentation to the Medical Unit. S2 kept a copy of the documentation in her locked office. S1 also reviewed the documentation and kept a copy of it in an unofficial personnel file he believed he was required to maintain as a supervisor. When his supervisory detail ended, S1 took the documentation home and kept it in his personal possession. The AJ found that S1's actions violated the Rehabilitation Act as it related to the proper preservation of confidential medical information. The AJ, however, found that S2's actions did not violate the Rehabilitation Act because S2 had a "need to know" as a supervisor in the station, S2 had an obligation to perform a cursory review of the documentation, and S2 followed Agency protocol by forwarding the documentation to the Medical Unit after her cursory review. Moreover, the AJ found that there was no violation of the Rehabilitation Act from which an award of damages would be warranted because there was no evidence that S1 or S2 unlawfully disclosed Complainant's medical information to a third party and there was no evidence that Complainant was harmed by S1's improper recordkeeping. As a remedy, the AJ ordered the Agency to provide the management officials assigned to the Gulfwinds Station a minimum of four hours of EEO training on the Rehabilitation Act, with respect to confidential medical information and recordkeeping. The Agency subsequently issued a final order implementing the AJ's decision. Complainant then filed the instant appeal. We will address the arguments contained in Complainant's appeal in greater detail below. The Agency did not file a statement or brief in opposition to Complainant's appeal. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9, § VI.B. On appeal, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. § VI.C.1 Reprisal Discrimination - Street Observations and Suspension On appeal, Complainant argued that S1 retaliated against him by subjecting him to street observations (claim 1) and issuing him a 14-day suspension (claim 3). As evidence of S1's retaliatory motive, Complainant cited the temporal proximity between the July 9, 2008 EEO settlement and S1's actions in July/August 2008. In addition, Complainant cited testimony from S1 that he was extremely upset about the EEO settlement, that he thought Complainant deserved to be fired, and that he did not like Complainant. Regarding claim 1, Complainant argued that the AJ should have credited his testimony that S1 subjected him to numerous street observations. Regarding claim 3, Complainant argued that the suspension was unwarranted because the October 2, 2008 grievance settlement reduced it to an official discussion. Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the basis of reprisal for prior protected EEO activity. Specifically, we agree with the AJ that Complainant failed to prove pretext. We emphasize that the AJ made a factual finding that no retaliatory intent existed on the part of S1. Complainant failed to demonstrate that the AJ erred in making such a factual finding. Specifically, we find that the temporal proximity between Complainant's prior protected EEO activity and S1's actions, without more, is insufficient to prove pretext. In addition, we find that S1's testimony does not compel a finding of pretext. Although S1 testified that he was extremely upset about the EEO settlement, he clarified that he was not upset that he had to sign off on the settlement, but was upset that Complainant had slandered him and falsely accused him of being a liar. Hearing Transcript (Hr'g Tr.), at 165, 174. Although S1 testified that Complainant deserved to be fired, he was referring to Complainant's conduct (intentionally failing to deliver mail) that was the basis of the removal letter at issue in Complainant's prior EEO complaint. Id. at 175-76, 200. Although S1 testified that he did not like Complainant, S1's dislike of Complainant is not proof of a retaliatory motive. Id. at 174. We note that S1 also testified that the EEO settlement did not play any part in the street observations or the suspension. Id. at 165-66. As to Complainant's arguments about claims 1 and 3, we find that they are insufficient to prove pretext. Regarding claim 1, the AJ found that S1 subjected Complainant to numerous street observations, but did not find that S1's motive for doing so was retaliatory. See AJ's Decision, at 5, 13-14. Regarding claim 3, the grievance settlement's reduction of the discipline does not show that the suspension was unwarranted. We note that the grievance settlement contains the following language: "[T]he facts remain in dispute ... This agreement in no way prejudices either parties [sic] position in future cases that may be similar in nature. This agreement sets no precedent and is not citable." ROI, at 116. Disability Discrimination - Confidentiality of Medical Information On appeal, Complainant argued that the use and retention of his medical information by S1 and S2 violated the Rehabilitation Act. Regarding S2, Complainant asserted that she did not follow the Agency's Management Instruction EL-860-98-2 when she reviewed his medical information or when she kept a copy of the medical information in her office. In addition, Complainant asserted that the AJ should not have credited S2's testimony that the union representative gave her the medical information because there was contradictory testimony in the record. Under the Rehabilitation Act, information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record ..." 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d). By its very terms, this requirement applies to medical information obtained from "any employee" and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). An agency may share confidential medical information only in limited circumstances. See 29 C.F.R. § 1630.14(c)(1)(i)-(iii). The Commission has previously held that an agency's failure to maintain a complainant's medical information in a separate medical file violates the Rehabilitation Act and constitutes disability discrimination. See Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003) (medical information was placed in a non-medical work file maintained by employee's supervisor); Mayo v. Dep't of Justice, EEOC Appeal No. 0720120004 (Oct. 24, 2012) (medical information was placed in a non-medical adverse action file in the Human Resources Department), request for reconsideration denied, EEOC Request No. 0520130125 (Apr. 25, 2014); Brunnell v. U.S. Postal Serv., EEOC Appeal No. 07A10009 (July 5, 2001) (medical information was placed in the employee's personnel file). Upon review, we find that substantial evidence in the record supports the AJ's finding that S1's actions, but not S2's actions, violated the Rehabilitation Act. Regarding S1, the record reflects that S1 failed to maintain Complainant's medical information in a non-medical file. Specifically, S1 testified that he placed a copy of Complainant's medical information in a personal file he kept "on everything and everyone" while he was a supervisor. Hr'g Tr., at 185. In addition, S1 testified that he took the file home when his supervisory detail was over. Id. at 187. Regarding S2, Complainant failed to demonstrate that S2 disclosed his medical information to an unauthorized person or placed his medical information in a non-medical file. Moreover, we find no reason to not accept the AJ's determination, based on S2's hearing testimony, that Complainant's union representative gave S2 the medical information. Although the record contains testimony otherwise, Complainant neither pointed to any objective documentary evidence contradicting S2's testimony nor showed that S2's testimony so lacks in credibility that a reasonable fact finder would not credit. Remedies On appeal, Complainant argued that the Agency's violation of the Rehabilitation Act warranted an award of damages. In addition, Complainant argued that the AJ should have ordered S1 to return the confidential medical information that was still in his possession. Moreover, Complainant argued that the training ordered by the AJ would not apply to S1 because S1 was no longer a supervisor at the Gulfwinds Station. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his claim of discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3). The Commission, an agency, or an AJ may also award a complainant reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of the Rehabilitation Act. 29 C.F.R. § 1614.501(e). Upon review, we find that the issues of compensatory damages and attorney's fees should be remanded to the AJ. As discussed above, Complainant established his claim of disability discrimination. In addition, we note the following exchange between Complainant's attorney (CA) and the AJ regarding damages: CA: You didn't bifurcate2 did you, Your Honor. AJ: I usually do, so I'm going to do that now as well. CA: Okay, so no testimony on damages? AJ: No, not today. H'rg Tr., at 59-60. Although the AJ found no evidence that Complainant was harmed by S1's actions, the record reflects that Complainant did not have an opportunity to present evidence on damages at the hearing. Finally, we find that the appropriate remedies would include the removal of Complainant's confidential medical information from any non-medical file in S1's possession and EEO training for S1. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's final order and REMANDS the matter for further processing in accordance with this decision and the Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless otherwise stated: 1. The issues of compensatory damages and attorney's fees are remanded to the Hearings Unit of the Miami District Office. The Agency is directed to submit a copy of the complaint file to the Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, an AJ must be assigned in an expeditious manner to further process the issues of compensatory damages and attorney's fees in accordance with the regulations. 2. The Agency shall remove all documentation containing Complainant's confidential medical information from any non-medical file in S1's possession. 3. The Agency shall provide eight (8) hours of EEO training to S1 regarding his responsibilities under EEO laws, particularly the Rehabilitation Act's confidentiality requirement. 4. The Agency shall consider taking appropriate disciplinary action against S1. 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 S1 has left the Agency's employ, the Agency shall furnish documentation of his departure date. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indicating that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Gulfwinds Station in St. Petersburg, Florida copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 __4/2/15________________ Date 1 Complainant also alleged that the Agency discriminated against him on the basis of reprisal when: (a) on July 28, 2008, S1 refused to allow him to see a union steward; (b) on July 31, 2008, S1 subjected him to an investigative interview; and (c) effective August 18, 2008, S2 placed him in an off-duty status pending a FFDE. The AJ found no reprisal discrimination regarding claims (a)-(c). On appeal, Complainant did not specifically challenge the AJ's findings on those claims. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § IV.A (Nov. 9, 1999). Accordingly, we will not address claims (a)-(c) in our decision. 2 An AJ may choose to bifurcate the hearing between the liability phase and the relief phase. See EEOC Handbook for Administrative Judges, Ch. 7, § III.G.2 (July 1, 2002). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120112516 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120112516