0120083870final
06-12-2012
David Humphries, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
David Humphries,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120083870
Hearing Nos. 540-2007-0044X and 540-2007-00086X
Agency Nos. FS20051128 and FS-2006-02386
DECISION
On September 8, 2008, Complainant filed an appeal from an Administrative Judge's decision after the agency failed to issue a final order. Accordingly, pursuant to 29 C.F.R. � 1614.109(i), the decision of the Administrative Judge became the agency's final action. This matter concerns his equal employment opportunity (EEO) complaints 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order.
BACKGROUND
The record reveals the following undisputed facts: Complainant's background is in Wilderness Rangership, but between 2003 and 2004, he worked as a Customer Services Representative in Tonto National Forest in Phoenix, Arizona. In October 2004, Complainant committed an error at work and decided to resign. On October 13, 2004, Complainant notified the Support Services Supervisor that he could not continue with the detailed nature of the position due to his hearing impairment, tinnitus, and learning disability, Attention Deficit Hyperactivity Disorder (ADHD). Complainant also stated that due to personal reasons, and a desire to get his career back on track, he needed to resign. The agency accepted, and on November 13, 2004, Complainant resigned from his position.
In the Spring of 2005, Complainant began applying for jobs, including a Forest Technician (Lookout) position at the Mt. Ord Tower in Tonto National Forest. Complainant submitted an online application, and was found qualified for the position. The online system relies on an applicant to self-qualify.
The Selecting Official (SO) received a list of qualified applicants, and in April 2005, chose Complainant. The SO's Manager then approved the selection. On some occasions, Human Resources review the applications prior to hiring. On this occasion, a Human Resources Specialist reviewed the application, and found that Complainant was qualified, but was a not a "quality candidate" due to his failure to adequately describe his specialized fire duty experience. The HR Specialist averred that Complainant could be a quality candidate if he satisfied the education requirements of the position.
Ultimately, Complainant was hired for the position, but the HR Specialist requested he provide his college transcript to verify his grade point average (G.P.A.), nonetheless. There is no evidence that Complainant provided the requested documentation, and the agency maintains that he refused to provide it. Complainant worked for three days and either resigned or was terminated from the position because the agency could not verify his G.P.A.. Since the agency was unable to verify his eligibility for the position, he was paid as a casual employee for the three days he worked.
Complainant continued to apply for wilderness positions, but was not hired. In 2006, Complainant hired Global Verification Services to verify his reference from the Tonto National Forest. In June 2006, Global Verification Services issued its findings and reported that the Support Services Supervisor commented in response to its reference request that Complainant left the District Ranger position for:
personal reasons. Illness of wife's mother, also attention deficit and the job was too stressful." Report of Investigation (ROI) at p. 94.
On October 28, 2005 and September 8, 2006 Complainant filed two EEO complaints alleging that the Agency discriminated against him on the bases of disability (attention deficit disorder and attention deficit hyperactivity disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on August 9, 2005, his position as a seasonal employee, Forestry Technician, GS-462-4 was reduced to a causal Administrative Determined employee; and
2. the Agency disclosed confidential medical information to Global Verification Services during a reference check.
The two complaints were consolidated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over the complainant's objections, the AJ assigned to the case granted the Agency's Motion for Summary Judgment with respect to Issue 1 above, and issued a decision without a hearing on August 22, 2007.
On October 31, 2007, the AJ held a hearing on Issue 2, above. After the hearing, the AJ issued a decision finding that although the record revealed the Support Services Supervisor disclosed confidential medical information to a potential reference, this was not a violation of the Rehabilitation Act because Complainant voluntarily disclosed his diagnosis. The AJ cited case law which states that voluntarily disclosed medical documentation is not confidential, unless it was disclosed in an employee health program or medical examination.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that he was in fact qualified for the Forest Technician positions, and the agency only looked into his educational requirements after he had disclosed he had a learning disability. As for the second complaint, he maintains that the agency wrongly disclosed confidential medical information to potential employers, which hurt his chances of being hired.
ANALYSIS AND FINDINGS
Agency Number FS-2005-01128
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").
We must first 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).
After a review of the record, we find the AJ's decision to issue a decision without a hearing on Complaint/Issue No. 1 was correct, as no dispute of material fact exists. Although Complainant was selected for the Forest Technician position, a review of his credentials revealed that an examination of his transcript was necessary to establish he satisfied the educational requirements of the position. Complainant did not provide the transcript, and as a result, the Human Resources Office determined that based on the record they had, Complainant was not qualified for the position. Even assuming, arguendo, that Complainant is an individual with a disability, he failed to present evidence that the HR Specialist was aware he suffered from ADD or ADHD at the time.
Although the particular selection method used by the agency may not be logical, Complainant failed to present evidence that would suggest a discriminatory motive was involved in the decision not to retain him in the position. The Agency provided evidence of others who were also required to produce evidence of their G.P.A., and Complainant did not dispute that he failed to produce a transcript. Accordingly, the agency's final action with respect to Complaint/Issue No. 1 is AFFIRMED.
Agency No. FS-2006-02386
After holding a hearing in the second complaint, the AJ found that at the time Complainant resigned from the Agency in October or November 2004, he informed his supervisor of his learning disability (ADD or ADHD). The AJ further found, based on the report by Global Verification Service, that Complainant's former supervisor relayed this confidential medical information when Global Verification Services called for a reference. However, according to the AJ, this did not constitute a violation of the Rehabilitation Act because the information was not obtained through a medical examination or an employee health program. Rather, the AJ found that Complainant voluntary disclosed this information, and was therefore not protected.
The Americans with Disabilities Act of 1990 (ADA)1 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).
Accordingly, we find the AJ erred when she found that the disclosure that occurred in the instant complaint was not prohibited because it was voluntarily made, and outside of an agency wellness or medical program. The Commission has long recognized that the employer's confidentiality obligation extends to medical information voluntarily disclosed. See ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations, EEOC Notice No. Number 915.002, (October 10, 1995). Accordingly, we REVERSE the agency's final action with respect to Complaint/Issue No. 2 and REMAND the matter in accordance with the ORDER below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part the agency's final action. The matter is REMANDED in accordance with the ORDER below.
ORDER
1. The issues of compensatory damages and attorney's fees are remanded to the Hearings Unit of the Phoenix District Office. The agency is directed to submit a copy of the complaint file to the EEOC 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, the Administrative Judge must be assigned in an expeditious manner to further process the issue of compensatory damages and attorney's fees in accordance with the regulations.
2. The agency shall post a notice in accordance with the paragraph below.
3. The Agency shall provide training to the management officials regarding their responsibilities concerning the confidentiality of medical information.
4. 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.
5. The Agency shall send evidence that they have complied with this Order to the Compliance Officer as referenced herein.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Tonto National Forest in Phoenix, Arizona facility 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.
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.
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
06/12/2012
__________________
Date
1 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.
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01-2008-3870
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083870