0120161004
09-21-2018
Eve E.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eve E.,1
Complainant,
v.
General Paul M. Nakasone,
Director,
National Security Agency,
Agency.
Appeal No. 0120161004
Hearing No. 531-2011-00233X
Agency No. 10-016
DECISION
On January 6, 2016, 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 8, 2015, final order 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., 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 AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ), decision without a hearing which found that Complainant did not demonstrate that she was subjected to discrimination when the Agency's representative spoke to her health care provider prior to the hearing.
ISSUE PRESENTED
The issue presented is whether the AJ erred in finding that the Agency did not commit a per se violation of the Rehabilitation Act when its attorney questioned her medical provider prior to a pre-hearing conference that took place on January 11, 2010.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Management Specialist, GG-13 at the Agency's Advance Intelligence Research Services, Telecommunication Information Center in Fort Meade, Maryland. Complainant filed an EEO complaint, Complaint #1, for which she requested a hearing. The issue in that case concerned whether she was discriminated against based on her race (African-American) and disability (one kidney and hypertension) when she was not provided a reasonable accommodation and was involuntarily reassigned on April 1, 2007.
On January 11, 2010, during a prehearing conference before an EEOC Administrative Judge (AJ1), Agency's counsel (AC) revealed that she had contacted Complainant's medical provider, a certified Nurse Practitioner (NP), and requested information about the medical provider's expected testimony at the EEO hearing. AC indicated that, during the prehearing preparation, Complainant produced medical documentation which revealed that NP was going to testify to the fact that Complainant had only one kidney and suffered from hypertension. Three other employees were also listed to confirm this information. AC noticed that Complainant made numerous references to a letter from NP, where NP was to testify that Complainant was a person with a disability within the meaning of the ADA. The letter was not provided to the Agency in discovery even though this type of information had been requested. AC explained that the witness was contacted for clarification as to the expected content of her testimony. Complainant's counsel objected to the Agency's actions. Complainant maintained that she had not given the Agency permission to contact her medical care provider directly. Complainant argued that this was a per se violation of the Rehabilitation Act. The inquiry had occurred five days prior to the pre-hearing conference.
On January 28, 2010, AJ1 announced his decisions granting, in part, the Agency's motion for summary judgment, and denying Complainant's motion for summary judgment. Thereafter, on February 2, 2010, Complainant contacted the Equal Employment Office regarding ACs' contact with the medical provider. Complainant maintained that the Agency made an "unlawful medical inquiry" in violation of 29 CFR Section 1630 et seq. She argued that the Agency's action constituted a per se violation of the Rehabilitation Act. The following day, Complainant withdrew her request for a hearing regarding Complaint #1 and requested a final decision.
On March 30, 2010, Complainant filed a new EEO complaint, Complaint #2, alleging that the Agency discriminated against her on the bases of disability (one kidney and high blood pressure) and reprisal for prior protected EEO activity when, during a prehearing conference on January 11, 2010, Agency counsel revealed that she contacted Complainant's medical provider and requested information about the medical provider's expected testimony at the EEO hearing scheduled for February 11, 2010.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing.
AJ2 noted that AC had questioned the NP in order to confirm the accuracy of a proffer that Complainant had made in her prehearing statement regarding the testimony of NP, and that she wanted to determine the reasons for an inconsistency between the proffer and the medical information previously provided in NP's letters. NP told AC she was not aware she was a witness in Complainant's EEO case and that she could not testify as proffered by Complainant in the prehearing statement. NP's deposition had not been taken.
AC indicated that she did not discuss anything that had not been revealed to the Agency in the course of the litigation. AJ2 also found that there was no evidence that AC shared any information from NP with anyone outside the Office of General Counsel.
AJ2 indicated that the issue was whether the prohibition against medical inquiries into an individual's disability applied to AC's actions which involved litigating the existence of such a disability. AJ2 agreed with the Agency's position in its Motion to Dismiss that an agency representative's inquiry into the disability of a complainant during the litigation of an EEO complaint in which that complainant had to prove the existence of such a disability, was not the type of medical inquiry that the ADA was designed to protect against. The inquiry by AC was clearly not made to obtain information that would be used in making employment-related decisions. Moreover, AJ2 indicated that, if there was a problem here, then it was with NP's violation of HIPPA. AJ2 also found that the case at hand was a spin-off complaint because Complainant was unsatisfied with the handling of her former complaint, i.e., Complaint #1.
Over Complainant's objections, AJ2 granted the Agency's Motion for a decision without a hearing and issued a decision on September 25, 2015, in favor of the Agency. 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, among other things, that AJ2 erred as a matter of law by improperly framing Complainant's unlawful medical inquiry claim as both a HIPAA violation and a spin-off complaint. Complainant further contends that AJ2 also erred as matter of law by failing to apply the correct legal standard for analyzing her claim that the Agency violated the Rehabilitation Act when it contacted her medical care provider without her prior consent and questioned that provider about her medical diagnoses, history, prognosis, and treatment.
Complainant contends that inquiries about her confidential medical information are permissible under the Rehabilitation Act only if they are job related and consistent with business necessity. Complainant asserts that by the Agency's own admission the Agency's medical inquiry was neither.
Further, Complainant maintains that AJ2 erred in finding that Complainant's complaint should be dismissed because the Commission lacked jurisdiction over the complaint; Complainant's complaint should be dismissed because it constituted a "spin-off" complaint; and Complainant could not prevail on her Rehabilitation Act claim, and, accordingly, summary judgment in favor of the Agency was appropriate.
Complainant contends that she was not alleging that a HIPAA violation took place but instead was alleging that the Agency made an unlawful medical inquiry in violation of the Rehabilitation Act. Complainant also maintains that the AJ2 erred in finding that this matter was a spin-off of Complaint #1. She asserts that Complaint #2 does not allege dissatisfaction with the processing of Complaint #1 but rather involves a single discrete act of discrimination, an unlawful medical inquiry perpetrated by the Agency.
Further, Complainant maintains that the Agency's contention that it had no choice but to contact her medical care provider without her prior knowledge or consent does not pass muster. The Agency was afforded the opportunity to conduct discovery in Complainant's prior EEO complaint and could have sought to take the deposition of NP either during the discovery period or outside of the discovery period if AJ1 had approved her as a witness. Rather than request this information through the approved discovery process, the Agency opted to contact Complainant's medical care provider directly, without Complainant's prior knowledge or consent, and asked the provider questions regarding her medical diagnoses, history, treatment, and prognosis.
In response, the Agency requests that its final order which fully implemented the AJ's finding of no discrimination should be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
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").
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).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that there are no materials facts at issue. Even if we assume, arguendo, that Complainant established a prima facie case of discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that AC's inquiry was related to preparation for litigation. While Complainant is correct that, pursuant to 29 C.F.R. Section 1630 (b), an employer can only make medical inquiries when the inquiries are job-related and consistent with business necessity, we find that Complainant did not prove that the inquiry made here was the type of medical inquiry that the ADA was designed to protect against. As noted by AJ2, the record indicates that AC's inquiry was to clarify NP's role in the litigation where the matter of Complainant's disability was a contested issue. Like AJ2, we also find that the information obtained by AC was not the type of information that would be used to make employment-related decisions.2 We find that Complainant has not shown that a per se violation of the Rehabilitation Act has occurred.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order, which fully implemented AJ2's decision that Complainant did not demonstrate that she was subjected to discrimination.
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
_9/21/18_________________
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 Because of our decision above, we do not find it necessary to address AJ2's additionally findings regarding a possible HIPPA violation or that Complainant's allegation constituted a "spin-off" complaint.
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