U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melani F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142156 Hearing No. 460-2014-00010X Agency No. 2003-0580-2013100507 DECISION On May 13, 2014, Complainant filed a timely appeal from the Agency's March 20, 2014, final order2 concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 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 order in part and REVERSES and REMANDS in part. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing; and (2) whether the AJ properly determined that the preponderance of the evidence in the record did not establish discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physical Therapy Tech at the Agency's Michael E. DeBakey VA Medical Center (VAMC) in Houston, Texas. Her first-line supervisor (S1) was a Supervisory Rehabilitation Therapist. On January 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and age (48) when: 1. From January 2012 through the present a Physical Therapist (PT1) has followed Complainant around the facility; 2. In July 2012, Complainant reported to S1 that PT1 had been following her around the facility, and S1 responded by stating, "Maybe it's your perception;" 3. On October 10, 2012, S1 failed to recommend Complainant for a monetary award even though S1 recommended an award for the rest of the department; 4. On November 7, 2012, Complainant learned that Human Resources determined that she did not meet the minimum requirements to be referred for the position of Patient Relations Assistant, GS-07, vacancy # JB-12-APA-762618; 5. On November 9, 2012, PT1 listened to a conversation that Complainant was having and then reported the content of the conversation to S1; 6. On January 11, 2013, PT1 stated to Complainant in a sarcastic tone, "Isn't it a little early for you to be leaving?" 7. On January 11, 2013, Complainant learned that a Physical Therapist (PT2) and a Program Support Assistant (PS1) accessed Complainant's medical file without her authorization; and 8. On January 14, 2013, Complainant learned that she was scheduled to work with PT1 on January 20, 2013, even though Complainant had requested not to work with PT1. The Agency accepted claims 3 and 4 as timely discrete acts and accepted the remaining claims as part of a single harassment claim consisting of claims 1 through 8. During the investigation, Complainant indicated that PT1 was no longer working at the VAMC and that therefore claims 1, 5, 6, and 8 were resolved. According to Complainant, S1 did not take her complaints regarding PT1 seriously. S1 said that Complainant told her that PT1 was harassing her, so she investigated Complainant's claim. S1 moved Complainant's work area and switched her duties so that she would not interact with PT1 as much. Complainant said that the Rehabilitation Department was inspected in 2012. According to Complainant, she completed additional tasks to prepare for the inspections. However, Complainant said S1 gave certain employees, excluding Complainant, awards for their involvement with the inspections. Complainant also said that she was rated Fully Successful by S1 and that S1 told her that she was not eligible for a performance-based award. According to S1, she recommended people for awards who worked on special projects such as helping with the inspection or serving as clinical instructors for students or who received special praise from patients. S1 said that Complainant did not assist with the inspection process. S1 said that she recommended about 22 out of 60 staff members in the department for an award. According to Complainant, she timely applied for a Patient Relations Assistant, but she was deemed not qualified for the position. Complainant said that the selectee for the position was younger and was not African-American. According to a Human Resources Specialist (HR1), Complainant's application did not indicate that she possessed the particular knowledge, skills, and abilities to successfully perform the duties of the position based on her education and/or experience. According to Complainant, PT2 and PS1 accessed her VAMC medical records3 without a valid reason for doing so. S1 said that she conducted a fact-finding and reported her findings to the VAMC Privacy Officer (PO1). PO1 said that she reported that PT2 and PS1 accessed Complainant's medical records without a valid reason for doing so to Labor Relations and S1 for assessing what, if any, discipline should be issued. 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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 17, 2014, motion for a decision without a hearing and issued a decision without a hearing on March 11, 2014. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that summary judgment was improper. According to Complainant, the Agency is misstating the facts because the evidence clearly shows that Complainant was discriminated against. For example, Complainant states that the Agency has not provided a legitimate, nondiscriminatory reason for PT2 and PS1 accessing Complainant's medical files. Complainant also argues that her work environment was objectively hostile. In response to Complainant's appeal, the Agency contends that the AJ's decision was thorough and well analyzed and requests that its final order be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). Decision Without a Hearing We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Here, the AJ properly decided the case without a hearing because there is no genuine dispute of material fact. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency has provided a legitimate, nondiscriminatory reason for not nominating Complainant for an award, which is that she did not work on a special project or receive praise from a patient like the 22 employees S1 nominated for an award. The preponderance of the evidence does not establish that this reason is pretext for discrimination. The Agency has also provided a legitimate, nondiscriminatory reason for Complainant not qualifying for the Patient Relations Assistant position, which is that her resume was not specific enough to indicate that she possessed the knowledge, skills, and abilities required to be successful for the position. The preponderance of the evidence in the record does not establish that this proffered reason is pretext for discriminatory animus. Harassment To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. There is no evidence in the record connecting the alleged harassment to Complainant's race, color, or age. Moreover, the majority of the alleged harassment is neither severe nor pervasive enough to constitute a hostile work environment. However, Complainant alleged that her coworkers accessed her VAMC patient medical records without a valid business-related reason for doing so. It is a per se violation of the Rehabilitation Act to access confidential employee medical records when the access is not shown to be job-related and consistent with business necessity.4 Specifically, 29 C.F.R. § 1630.14(c)(1) provides, in pertinent part, that: "Information obtained . . . regarding the medical condition or history of any employee shall . . . be treated as a confidential medical record." By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000). We note that we have rejected the distinction between a complainant's status as a patient and a complainant's status as an employee with respect to accessing confidential medical records. See ***, Complainant, v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121423 (May 7, 2014). The record clearly establishes, without dispute, that PT2 and PS1 accessed Complainant's confidential medical records and that PO1's investigation determined that the access was neither job-related nor consistent with business necessity. Accordingly, we find that the Agency has violated the Rehabilitation Act and REVERSE and REMAND the Agency's final order with respect to this claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order with respect to claim 7 only and REMAND the matter to the Agency in accordance with the ORDER below. We AFFIRM the Agency's final order with respect to the remaining claims. ORDER The Agency shall take the following remedial actions: 1. Within 30 days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within 60 days of the date Complainant receives the Agency's notice. The Agency shall complete any investigation on the claim for compensatory damages within 60 days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 2. Within one hundred and twenty (120) days of the date on which this decision becomes final, the Agency shall provide EEO training regarding the confidentiality of medical information under the Rehabilitation Act to all Agency employees responsible for improperly releasing Complainant's confidential medical information. 3. Within one hundred and twenty (120) days of the date on which this decision becomes final, the Agency shall consider taking disciplinary action against the Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline. 4. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall ensure that its patient database is managed in such a manner so as not to allow the release of confidential medical information in violation of the Rehabilitation Act. 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 supporting documentation, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Michael E. DeBakey VA Medical Center facility 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)), 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations June 23, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant's appeal is timely because a certified mail receipt indicates that Complainant's representative did not receive the Agency's final order until April 23, 2014. 3 Complainant is a veteran and a patient of the VAMC. 4 While PT2 and PS1 accessing Complainant's confidential medical records is a violation of the Rehabilitation Act, there is no evident connection between PT2 and PS1 accessing Complainant's records and Complainant's race, color, or age. In support of this contention, Complainant noted that the Agency has not provided a legitimate, nondiscriminatory explanation for PT2 and PS1 accessing Complainant's medical records. However, we note that McDonnell Douglas analysis does not apply to harassment claims. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-2156 2 0120142156