0120171051
08-10-2018
Elliot J.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elliot J.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120171051
Agency No. HS-TSA-25372-2016
DECISION
On January 23, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 27, 2016, 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, age, and/or disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Federal Air Marshal, 1801, SV-I, at the Agency's Federal Air Marshal Service (FAMS) Chicago, Illinois Field Office facility. Complainant is Asian-American, and, in December 2015, Complainant was 44 years old. Complainant stated that he had a disability, which was a ruptured right bicep tendon, which required surgery and limited his ability to drive, eat, shower, sleep, and lift for approximately six months. Complainant alleged that he ruptured his right bicep tendon on March 24, 2015, in the gym while on a FAMS mission. Complainant filed an Office of Workers' Compensation Program (OWCP) claim regarding his claimed on-the-job injury, which was approved by the Department of Labor.
An Office of Inspection (OOI) Special Agent (SA) stated that management requested an investigation into Complainant's OWCP claim and other FAMS policy violations, as management had heard that Complainant played in a football game in San Diego, California and injured his arm on March 21, 2015. According to SA, the OOI investigation uncovered video footage of the football game that showed Complainant getting injured and sitting on the sideline with his arm in a sling. SA averred that airport surveillance footage also showed that Complainant did not carry his own bags or use his right arm after the football game or when reporting to work on March 24, 2015, despite being right handed. SA also stated that the physician who examined Complainant's arm stated that the color of the bruise indicated that it was two to five days old.
On July 7, 2015, Complainant was placed on administrative leave. On July 8, 2015, the Office of Personnel Security (OPS) notified Complainant and the Special Agent in Charge of the Chicago Field Office that his top secret security clearance had been suspended. On July 9, 2015, Complainant received a Notice of Proposed Indefinite Suspension, and on July 22, 2015, Complainant received a Notice of Indefinite Suspension.2
On December 12, 2015, OPS notified Complainant that his security clearance had been revoked. The Acting Chief Security Officer (ACSO) stated that he decided to revoke Complainant's security clearance solely based on the OOI investigation's finding that Complainant injured his arm during the March 21, 2015, football game and not while on duty on March 24, 2015, as claimed by Complainant. ACSO averred that he was unaware of Complainant's race or age.
Complainant alleged that the Agency improperly stored his confidential medical information in "non-medical, adverse action files" in the OOI, in the OPS, in the Chicago Field Office, and in the Office of Professional Responsibility (OPR). According to Complainant, participants in the OOI investigation had access to the OOI report of investigation (ROI), which contained his medical information. According to SA, the ROI was only distributed to Complainant and to the OPR, because OPR was the deciding official. SA denied that the participants in the investigation were provided a copy of the ROI.
Complainant also alleged that someone from the Agency leaked his medical information to the media because the local media contacted Complainant to ask about the investigation into Complainant's OWCP claim as well as an issue involving another Federal Air Marshal. Finally, Complainant averred that management shared his medical information with members of Congress without his permission. The Chicago Field Office SAC stated that he was aware of the news coverage of "the football issue" and "potential sexual acts" involving another Federal Air Marshal, but he stated that he was unaware of Complainant's medical information being leaked to the media.
On March 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian-American), disability (physical), and age (44) when:
1. On or about December 7, 2015, Complainant learned that his security clearance was revoked;
2. On or about December 15, 2015, the Agency improperly stored his medical records in a disciplinary file; and
3. On an unspecified date, management improperly gave medical records to individuals outside of the Agency without authorization.
During the investigation into his complaint, Complainant declined to sign a medical release authorizing the EEO Investigator to obtain medical documents from the Agency. As a result, the investigative file does not contain any medical documentation pertaining to Complainant's injury, OWCP claim, the OOI investigation, or the decision to revoke Complainant's security clearance.
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). In accordance with Complainant's request, 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. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant cites his affidavit from the EEO investigation to support his contention that he established that he was subjected to discrimination and requests compensatory damages for emotional distress.
In response to Complainant's appeal, the Agency contends that Complainant has not established that he was subjected to discrimination and requests that its final decision finding no discrimination should be affirmed.
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").
Revocation of Complainant's Security Clearance
Complainant alleged that he was discriminated against based on race, age, and disability when the Agency revoked his security clearance. The Commission is precluded from reviewing the validity of the requirement of a security clearance and the substance of a security clearance determination. Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988); Thierjung v. Dep't of Def. (Def. Mapping Agency), EEOC Request No. 05880664 (Nov. 2, 1989); see also Policy Guidance on the Use of Nat'l Sec. Exception contained in 703(g) of Title VII of the Civil Rights Act of 1964, as amended, EEOC Notice No. N-915-041 (May 1, 1989). However, the Commission is not precluded from reviewing whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner. Schroeder v. Dep't of Def. (Def. Mapping Agency), EEOC Request No. 05930248 (Apr. 14, 1994); Lyons v. Dep't of the Navy, EEOC Request No. 05890839 (Mar. 22, 1990).
Here, Complainant appears to challenge the substance of the Agency's decision to revoke his security clearance. We find that we do not have jurisdiction over the substance of the revocation of his security clearance. See Lenny W. v. Dep't of Homeland Security, EEOC Appeal No. 0120152418 (Nov. 28, 2017). Furthermore, there is no evidence in the record that Complainant was treated differently in the revocation of his security clearance based on his race, age, and/or disability. Accordingly, Complainant has not established by preponderant evidence that he was subjected to discrimination when his security clearance was revoked.
Improper Storage of and/or Dissemination of Complainant's Medical Records
Complainant alleged that the Agency committed a per se violation of the Rehabilitation Act in improperly storing and disseminating his medical records. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of employee 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." Disclosing medical information pertaining to complainant in a manner that does not conform to conditions prescribed in the regulations constitutes a per se violation of the Rehabilitation Act. See Valle v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997) (reversing an agency's dismissal for failure to state a claim, finding complainant was alleging her medical information was improperly disclosed, which constitutes a per se violation of the Rehabilitation Act); see also Melani F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142156 (June 23, 2016) (coworkers accessing the complainant's medical records where access was neither job-related nor consistent with business necessity was a per se violation of the Rehabilitation Act). The Commission has noted that the Americans with Disabilities Act of 1990 (ADA), as amended, prohibits the disclosure of medical information except in certain limited situations. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, No. 915.002, Q. 42 (revised Oct. 17, 2002). The limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; (3) government officials investigating compliance with the ADA must be given relevant information on request. Id., fn. 111.
We note that the Commission has found that Agency officials may share confidential medical information about an employee with other Agency officials on a "need-to-know" basis, if doing so is necessary to ensure compliance with the Rehabilitation Act. See Skarica v. Dep't of Homeland Sec., EEOC Appeal No. 0120073399 (Mar. 5, 2010) (finding agency did not violate confidentiality provisions of Rehabilitation Act when complainant's supervisor consulted a personnel official and an agency physician to ascertain how to accommodate complainant's medical condition; these officials had a legitimate "need to know" complainant's medical information). In the instant case, the preponderance of the evidence in the record indicates SA obtained Complainant's medical records during the OOI investigation into alleged workers' compensation fraud and provided these records to the OPR as the deciding official regarding adverse actions. The preponderant evidence also establishes that the ACSO also reviewed Complainant's documentation in determining whether to revoke Complainant's security clearance.
Complainant also alleged that his medical records were provided to the local media and unidentified members of Congress. Other than Complainant's unsupported assertion, there is no evidence in the record that these confidential medical records were improperly stored or were provided to any additional individuals or entities, including the local news media and members of Congress.3 Complainant failed to specify the nature of the disclosure of his medical records to members of Congress. While Complainant alleged that Agency officials leaked his medical records to the news media, the SAC denied that Agency officials did so. Because Complainant failed to request a hearing before an AJ, we do not have the benefit of credibility determinations. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a "he said, she said" situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). We therefore find that Complainant failed to establish by the preponderance of the evidence that his medical records were improperly shared with the media or members of Congress.
While Complainant's medical history and medical documents were obtained and reviewed by SA, OPR, and the ASCO, we find that these officials "needed to know" Complainant's medical conditions in order to address the OOI's investigative report discussing Complainant's injury and subsequent allegedly fraudulent OWCP claim. In so finding, the Commission has noted that medical information may be given to-and used by-appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA.4 See ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations (Oct. 10, 1995); see also Beatriz L. v. U.S. Postal Serv., EEOC Appeal No. 0720150009 (June 12, 2018) (finding that complainant's supervisors and human resources officials had a "need to know" her medical information to determine whether to take an adverse action and make an employment decision against her for being dishonest about her medical condition). The Commission has also noted, "An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or workers' compensation history." Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act, at �9.8. (January 1992).
Here, we find that the disclosure of Complainant's medical information during the investigative process and during the review of Complainant's security clearance is consistent with the Commission's understanding of the ADA that decision makers may have access to an employee's medical information in order to make an employment decision consistent with the ADA. As such, we find that any disclosure of Complainant's medical records or discussion of Complainant's medical history between SA, the OPR, and the ACSO fell within exception (1) of the limited exceptions to the ADA confidentiality requirements. These individuals needed Complainant's medical information to determine whether to take an adverse action and make an employment decision against Complainant for being dishonest about his medical condition. As there is no evidence that the OOI report was discussed with any employee who "did not need to know," we find that the Agency did not improperly store or reveal Complainant's confidential medical information in violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because the Commission does not have jurisdiction over the substance of the Agency's decision to revoke Complainant's security clearance and because the preponderance of the evidence in the record does not establish that discrimination occurred as alleged in the remaining claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. 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
August 10, 2018
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 placement on administrative leave and indefinite suspension are not part of the instant complaint.
3 We note that the lack of supporting evidence appears attributable to Complainant's refusal to sign a release authorizing the Agency to provide relevant medical documentation to the EEO Investigator.
4 The Rehabilitation Act standards for disability-based discrimination are consistent with ADA regulations and guidance.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120171051
8
0120171051