0120090865
03-04-2009
Cynthia Council, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Cynthia Council,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120090865
Agency No. P20080564
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 30, 2008, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of disability
(unspecified) and reprisal for prior protected EEO activity under a
statute that was unspecified in the record when:
1. On June 6, 2008, complainant learned that medical information
concerning her disability had been placed in her time and attendance
record.
The agency dismissed the complaint for failure to state a claim, pursuant
to 29 C.F.R. �� 1614.107(a)(1), 103 and 106(a), finding that complainant
had not shown harm. The FAD noted that management immediately removed
the document from complainant's records and redacted the information.
On appeal, the agency argues that complainant's reliance on � 1630.14
is misplaced because that section addresses only employee entrance
examinations, job-related medical examinations, and voluntary medical
examinations that are part of an employee health program. In the present
case, the agency argues, the medical record at issue was in support of
a sick leave request and therefore did not fit under either of the three
types of medical records addressed by � 1630.14.
We note that the Commission has held that the agencies duty to keep
medical records confidential applies to all medical records, regardless
of how they are obtained or for what purpose. See Enforcement Guidance
on Disability Related Inquiries and Medical Examinations of Medical
Employees Under Americans With Disabilities Act (Guidance) (July 26,
2000). The Guidance states "...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, [must be
treated] as a confidential medical record." Id., p.4. (emphasis added).
We therefore find that complainant states a claim. While the agency
further notes that management promptly removed the document, redacted
the information, and that no unauthorized employee saw complainant's
medical information, such an argument addresses the merits of the matter
and is inappropriate until after the complaint has been accepted and
an investigation conducted. Accordingly, the agency's final decision
dismissing complainant's complaint is reversed. The complaint is hereby
remanded to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
March 4, 2009
__________________
Date
2
0120090865
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090865