Buster D.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120141171 (E.E.O.C. Mar. 11, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Buster D.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120141171

Hearing No. 461-2014-000015X

Agency No. FSIS-2013-00191

DECISION

On February 17, 2014, Complainant filed an appeal from the Agency’s January 31, 2014, final
decision 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. For the following reasons, the Commission
MODIFIES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Landscape
Architect, GS-0807-11, at the Agency’s facility in New Orleans, Louisiana. The record
reveals Complainant retired from the Agency on December 28, 2012.

Complainant filed an EEO complaint dated April 16, 2014, alleging that the Agency
discriminated against him on the bases of disability (reading disabled/neurological attention
deficit disorder) and in reprisal for prior protected EEO activity when:

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.

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On October 31, 2012, management disclosed Complainant’s confidential EEO-related
documents and medical information to another employee.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ denied the hearing request. Complainant does not argue on appeal that he was improperly
denied a hearing. The AJ remanded the complaint to the Agency, and 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 him to discrimination as alleged.

On appeal, Complainant states the present complaint represents just one piece of the campaign
of continuous harassment, which the Agency has engaged in since at least 2009, which
culminated in his constructive discharge. Complainant notes that several of his prior
complaints, alleging constructive discharge, are still under investigation as “mixed” cases.
Complainant notes he previously requested reasonable accommodations and that the Agency:
rejected his requests for reasonable accommodation; refused to consider his disabilities in
assigning job tasks; and demanded more medical documentation which was ignored or
discarded. Complainant also claims that management retaliated against him by: denying him
the opportunity to remain current in his skills and knowledge of essential components of his
job; denied him training; conditionally approved his leave requests; delayed consideration of
his leave requests; overly scrutinized his work product; and overly scrutinized his travel
vouchers.

Complainant also states that management obtained confidential information from his prior EEO
cases as a basis to terminate his employment. Complainant states that prior to the Agency
“completing its malicious design to use this confidential information,” he was forced to resign
his position. Complainant requests the Commission enter a finding of discrimination and
retaliation in this case, in order to further support his theories of discrimination and retaliation
which resulted in his constructive discharge case.

In response to Complainant’s appeal, the Agency notes the only issue for consideration
involves the Agency sending Complainant’s information via electronic mail to his union
representative. The Agency notes that on appeal Complainant appears to be arguing issues
from his other EEO cases but states these issues are not part of this case and are encompassed
in a separate matter. The Agency states it presented legitimate, nondiscriminatory reasons for
sending Complainant’s information to his union representative, and in response Complainant
has presented no evidence showing that the reasons were pretextual. The Agency states that
while the Agency may have been aware of Complainant’s EEO activity, there is no showing of
any nexus between the documents being sent to the union representative and his prior EEO
activity. The Agency claims its actions in communicating with Complainant’s union
representative were reasonable under the circumstances. The Agency states there was no ill
intent on its part, and argues it was understandable that the Agency reasonably believed the
union representative continued to be involved in Complainant’s case. The Agency notes the

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union representative represented Complainant in issues of work performance and performance
improvement plan. Thus, the Agency states it was reasonable for the union representative to
receive documents related to Complainant’s proposed removal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

At the outset, we note the only issue before the Commission concerns the Agency’s alleged
disclosure of Complainant’s confidential information.

The Commission's regulations implementing the Rehabilitation Act provide for the
confidentiality of medical records. 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.”

The Commission’s regulations list the following limited exceptions to the confidentiality
requirement: supervisors and managers may be informed regarding necessary restrictions on
the work or duties of the employee and necessary accommodations; first aid and safety
personnel may be informed, when appropriate, if the disability might require emergency
treatment; and government officials investigating compliance with this part shall be provided
relevant information on request. 29 C.F.R. § 1630.14; 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) (Guidance). The Commission has
also interpreted the ADA to allow employers to disclose medical information to state workers’
compensation offices, state second injury funds, workers’ compensation insurance carriers, and
to health care professionals when seeking advice in making reasonable accommodation
determinations. Guidance at 4 n.10. Additionally, employers may use medical information for
insurance purposes. Id.

As noted earlier, the Agency’s obligation to keep certain medical information of its employees
confidential applies to all employees regardless of disability status. The Commission has held
that although not all medically related information falls within the confidentiality provision,
documentation or information concerning an individual’s diagnosis is without question medical
information that must be treated as confidential except in those circumstances described in 29
C.F.R. Part 1630. Lampkins v. U.S. Postal Serv., EEOC Appeal No. 0720080017 (Dec. 8,

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2009) (citations omitted). As noted above, the Rehabilitation Act only allows for the release of
the medical information of an applicant or employee in limited circumstances.

In the present case, Complainant is alleging a per se violation of the Rehabilitation Act. In his
complaint, Complainant states that his medical information was improperly sent via electronic
mail to the Chief Union Steward for the Talent, Expertise, Agility, Mobility and Simplicity
(TEAMS) Enterprise Program without his permission.

The record contains an affidavit from the Chief Union Steward who stated she represented
Complainant during the relevant time regarding issues with his work performance and
Performance Improvement Plan (PIP). The Chief Union Steward noted that Complainant had
other employment issues that were separate from designated union representation. The Chief
Union Steward explained that on October 31, 2012, she received an electronic mail message
from an Employee Relations Specialist containing information about Complainant’s EEO
complaint and his disability diagnosis.

The record contains an affidavit from the Director of the Enterprise Program (Director). The
Director stated that he did not authorize the Employee Relations Specialist to send the
electronic mail message at issue to Complainant. The Director stated that he recalled the
Employee Relations Specialist informing him that the union needed to be copied because the
union represented Complainant, along with his attorney. The Director did not recall if
Complainant’s medical history was included in the electronic mail message.

In her affidavit, the Employee Relations Specialist stated that during the relevant time she was
working with management on the Proposed Removal of Complainant. She stated it was her
role to assist in the process of preparing the paperwork and making sure all information was
provided to the parties. The Employee Relations Specialist stated that on October 31, 2012, in
preparing for the Proposed Removal, she sent additional documentation that was being used by
the deciding management official, the Director, to support his decision on Complainant’s
proposed removal. The Employee Relations Specialist stated it was procedure to send all
documentation to Complainant and the representative in order to allow them to respond to the
evidence relied upon to support a disciplinary action. The Employee Relations Specialist noted
that she scanned in all the documents and sent them via electronic mail to Complainant and the
Chief Union Steward. The Employee Relations Specialist explained that Complainant was
entitled to respond to all evidence before a final decision was made. The Employee Relations
Specialist stated that the Chief Union Steward was copied on the electronic mail message as
she was in all correspondence related to Complainant’s proposed removal. The Employee
Relations Specialist stated that to the best of her knowledge, the documents did not contain any
medical information. The Employee Relations Specialist stated that included in the documents
sent were the reasonable accommodation requests made by Complainant and the offers of the
accommodations made by the Agency. The Employee Relations Specialist stated that she did
not have copies of any formal delegation forms listing the Chief Union Steward or Attorney X
as Complainant’s designated representatives.

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The record contains the October 31, 2012 electronic mail message sent to Complainant,
Attorney X, and the Chief Union Steward. The message contained four attachments and
numerous documents labeled A to ZZZ. Among those documents, we note there was a
September 13, 2010 letter from Complainant’s new attorney replacing his former attorney
(Attorney X). In this letter, the new attorney mentioned, among other items, that Complainant
suffered from attention deficit disorder and a reading disability.

Upon review, we find a violation of the Agency’s responsibilities under the Rehabilitation Act
regarding the recordkeeping of confidential medical information when the Agency disclosed
Complainant’s medical diagnosis to the Chief Union Steward who did not have a need to know
during the Agency’s handling of Complainant’s Notice of Proposed Removal. To the extent
the Agency may be arguing that the medical information at issue was not confidential, we find
that the information described is confidential medical information that may not be disclosed
under the Rehabilitation Act. See Manns v. U.S. Postal Serv., EEOC Appeal No. 01A53044
(June 9, 2006). Moreover, we note that in its final decision, the Agency acknowledged that
the release of documentation on October 31, 2012, occurred without Complainant’s written
consent. While the Agency argues that Complainant did not properly delineate the roles of the
Chief Union Steward and his attorney, we find the Agency does not allege that Complainant
engaged in any actions to misconstrue the roles of his attorney and his union representative
during the relevant time frame. Thus, we find a violation of the Rehabilitation Act occurred.
See 29 C.F.R. § 1630.14(c)(1). However, we find Complainant failed to show by a
preponderance of evidence that the Agency’s actions were based on reprisal for his prior
protected EEO activity.

CONCLUSION

Accordingly, the Agency’s finding that it did not subject Complainant to discrimination in
reprisal for his prior protected EEO activity is AFFIRMED. The Agency’s finding that it did
not unlawfully disclose Complainant’s confidential medical information is REVERSED and the
matter is REMANDED to the Agency for further processing in accordance with the Order
herein.

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 his 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

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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 30 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 the Employee Relations Specialist and any other Agency
employees responsible for improperly releasing Complainant's confidential medical
information.

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 New Orleans, Louisiana 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)), 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

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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 (M0815)

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, 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).

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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

March 11, 2016
Date