0120152280
12-27-2017
Foster M.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Foster M.,1
Complainant,
v.
Rick Perry,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120152280
Agency No. 14-0013-AL
DECISION
On June 15, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated May 18, 2015, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. � 2000ff et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Federal Agent (Nuclear Materials Courier) in the Agent Operations Central Command (AOCC), within the Office of Secure Transportation (OST), within the National Nuclear Security Administration (NNSA). Complainant's duty station is in Amarillo, Texas.
On November 5, 2013, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment based on disability (regarded as having a heart condition), genetic information (family history of heart condition), age (44), and reprisal for prior protected EEO activity when:
1. On September 23, 2013, while on a convoy road trip he was relieved in a humiliating manner from Nuclear Explosives Duties (NED) which include transporting nuclear materials, and after being directed while on the trip to the emergency room he incurred medical expenses which the Agency did not pay;2
2. As of September 23, 2013, the unauthorized release of his medical history and condition is common knowledge in his organization, and coworkers have stated that they do not want to work with him because of his perceived heart condition;
3. For the period of September 24, 2013 to November 26, 2013, he was required to complete additional medical testing at his personal expense, and required to use annual and sick leave for related medical appointments and medical tests;
4. His NED duties remained suspended for failure to meet the neurological medical standards for the Human Reliability Program (HRP) and were not restored until February 5, 2013, even though non-Agency physicians determined he was fit for duty;
5. After another convoy trip (February 23, 2014 trip), his first line supervisor (S1) whose duty station in in Amarillo attempted to negatively influence the rating for Complainant's performance thereon by Complainant's Coworker (CW1) (Lead Convoy Commander); and
6. During a March 24, 2014, meeting, S1 attempted to elicit a negative reaction from him to negatively affect his HRP status.
Following an investigation, the Agency gave Complainant a report thereof and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not request a hearing, so the Agency issued its FAD pursuant to 29 C.F.R. � 1614.110(b). The Agency dismissed issue 5 for failure to state a claim, and found no discrimination on the remaining claims.
Complainant is part of specialized force responsible for safely and securely transporting classified information and hazardous materials including nuclear weapons and components thereof, and weapons grade nuclear materials. Duties include para-military tactical operations to respond to natural and made-made threats, including executing tactical responses to repel, contain, or attack a hostile force while ensuring the safety of the cargo and the public, apprehending, investigating and processing violators of federal statutes, and using law enforcement skills such as use of firearms, controlling prisoners, and application of constitutional law. While working on the road Complainant is armed. The job is emotionally, physically, and mentally demanding.
In January 2012, while jogging with his 8-year old daughter, Complainant collapsed and went into cardiac arrest in front of his house because a piece of plaque broke off and he had a clogged artery. His daughter sought help from their neighbor, another Agency Federal Agent who is a medic. He performed cardiopulmonary resuscitation (CPR) while Complainant's daughter called 911. Complainant was taken to the emergency room and underwent emergent catheterization reopening his left interior descending (LAD). Complainant was placed on blood thinning medicine and made an excellent recovery.
On the day of his cardiac arrest, his spouse called Complainant's coworker CW2 (Federal Agent) wife, who told him the same day. Word got around, and the emergency waiting room became filled with agents and some of their families. S1 stated that during this time Complainant had many visitors at the hospital and his home, many employees took food to his home and took care of his children, and Complainant shared much of his medical information with others. Thus, Complainant's cardiac arrest became widely known among staff in Amarillo. The Agency did not reinstate Complainant's to HRP and travel/NED until May 1, 2013, and his first road trip started on September 22, 2013. ROI, Exhs. F12 at bates stamp 401, F25, at bates stamp 496. Thereon, he shared his convoy vehicle with CW3 (Senior Federal Agent, Vehicle Lead/co-driver) and CW4 (Federal Agent, co-driver). The vehicle contained a sleeping cabin, and Complainant and CW3 and 4 took turns sleeping and driving.
CW3 stated the following. On Complainant's first driving shift, convoy tractor-trailers drove into a fueling station parking lot to set up security for refueling, and at the fueling stop entrance Complainant made 11/2 circles. CW3 asked Complainant what he was doing, and after a five second delay while staring at the steering wheel responded parking. Complainant passed numerous parking spaces, and chose to stop in a location blocking a tractor scale. Then, on the interstate Complainant drove off the road and over the rumble strips staying there until CW3 prompted him to get back on the road. At another fueling stop Complainant drove 15 feet into the entrance and stopped, blocking traffic, and CW3 was afraid they would be rear ended. After several seconds, he prompted Complainant by saying his name. Complainant was staring at his steering wheel unaware of traffic trying to maneuver around them, and without moving or looking up Complainant said to CW4 (who was in the sleeper) "we're here. Hop out." CW4 asked Complainant to park so he could get out when it was safe. In parking Complainant made a U turn and then went into reverse without using a Federal Agent as a "man on the ground" or a backup camera, and hit a curb with enough force to jump the vehicle. CW3 asked Complainant if he was okay, and he only responded with a smile. CW4 told Complainant there was a backup camera, and he responded "Hmm." Complainant appeared to exhibit memory loss by asking for the location of the light switch, radio, not recalling that the vehicle had a backup camera nor using a "man on the ground." CW3 rode with Complainant multiple times before and previously never saw any actions by him which caused a safety concern, and Complainant's behavior while driving led him to believe he was a safety concern and not able to fully complete his duties.
CW4 stated the following. When Complainant drove, he was in the sleeper. The vehicle was constantly swerving from left to right and running over rumble strips on one side and reflective bumpers on the other, and he got very little sleep because he was worried about unsafe driving. CW4's account mirrored CW3's account on what occurred at the second fuel stop entrance. When he drove while Complainant was sitting "shotgun" and CW3 was in the sleeper, it looked like Complainant took a pill, falling into a deep sleep almost the entire time. There was a lot of radio traffic, and he hollered for CW4 to wake up. Complainant did not awake until he hollered at him a couple times. This deep sleep caused CW4 concern.
During the early hours of September 23, 2013, CW 3 and 4 separately approached CW5 (Lead Federal Agent, Convoy Commander, Complainant only under his chain on command on the convoy) with concerns about Complainant. CW5 questioned them separately at length. CW5 wrote the following. CW 3 and 4 said Complainant appeared "sluggish," his actions and responses were made under effort, his driving was erratic, he seemed unsure of his surroundings and detached from his duties and interaction with his vehicle teammates, and he turned at the last possible second into a SUBSTOP and cut out in front of other vehicles, almost getting them hit. During these conversations, Complainant and CW6 (Lead Federal Agent, Convoy Commander, in charge of the convoy and responsible for employees thereon) were sleeping. CW5 advised CW3 to let Complainant rest, hoping fatigue was a factor, and to bring to his attention immediately any additional observations of a safety or security concern. CW5 advised he would consult CW6 when he awoke and CW6 would decide how to proceed. After CW6 awoke, CW5 notified him of CW 3 and 4's concerns, and after Complainant awoke CW 3 and 4 notified him his behavior had not changed, and they thought it deteriorated.
CW6 stated that he went to Complainant's vehicle, spoke to CW 3 and 4, who expressed concerns consistent with the above, and asked Complainant how he was doing. In his investigatory affidavit CW6 stated Complainant appeared sluggish. S1 conducted an After-Action Review on October 7, 2013, and according to his notes CW6 said Complainant said he was feeling fine and he did not notice anything unusual about him. CW5 stated that he saw Complainant walk back to his vehicle from a Subway restaurant, and CW6 then advised Complainant of his decision to relieve him. CW6 said that while he could not hear the conversation, he was in the area and witnessed that Complainant appeared distracted, unengaged, almost aloof or extremely fatigued, slow to respond or understand what was being told to him, and his posture was extremely slack.
When Complainant was relieved from duty, his was asked to turn over his gun. Complainant stated that there were three convoy vehicles present, and CW6 stated there were about seven employees in the area. CW6 directed CW7 (Lead Federal Agent/Medic) and CW8 (Lead Federal Agent, Convoy Commander - Complainant under his command during trip) to drive ahead and take Complainant to the hotel where the convoy would later be staying. CW7 stated that while Complainant was upset over being relieved from duty, he did not observe Complainant having medical issues on the way to the hotel. While they were one the way to the hotel CW6 called Albuquerque, and was patched through to the OST's contract Site Occupational Medical Director, a physician. The physician advised that Complainant's vitals be taken. CW7 and 8 were asked to return with Complainant for this reason.
CW 9 (Federal Agent/Medic) and CW10 (Federal Agent/Medic) evaluated Complainant while he was seated in his vehicle. Present in the vehicle were Complainant, his Vehicle Lead co-driver, CW 9 and 10. Other convoy trucks were in the area, but the record does not show they could see or hear the evaluation. CW9 stated that Complainant's pulse, blood pressure, respirations, were all within normal limits, and he was alert and oriented. He then reported his findings over the telephone to the OST's contract physician, who asked if he saw any questionable behavior by Complainant. CW9 advised no. Meanwhile, CW6 was also speaking with the physician, who advised that Complainant be taken to the nearest emergency room to be evaluated, and that he would call ahead to the emergency room. In his investigatory affidavit, the physician explained that Complainant was potentially having a serious medical event. CW6 stated that it was in Complainant's best interest to be taken to the emergency room, and he took the physician's advice to be a directive.
CW7 and 8 were then directed to take Complainant to the emergency room. On the way neither observed anything of concern about Complainant. CW8 stated complainant was irritated about the situation, but went along with what he was told to do - going to the emergency room. The emergency room performed a head cat scan (CT), an electrocardiogram (EKG), a sonogram of his carotid arteries, and extensive blood work. The emergency room did not find anything unusual, and cleared him to return to work. ROI, at G14, bates stamp 936, 943.
On September 24, 2013, the OST contract physician suspended Complainant's from HRP and travel status and recommended that he be cleared by a neurologist. The convoy continued without Complainant, and he flew home.
The OST physician explained that the applicable OST HRP medical standard for Federal Agents (Nuclear Material Couriers) requires they have no medical history or clinical diagnosis of a seizure disorder or disturbance of consciousness without satisfactory explanation of the cause, nor other neurological condition which would likely interfere with an individual's duty to perform Federal Agent duties. He stated that back in September 2013, he opined that Complainant did not meet this neurological standard because he did not have an adequate medical explanation of what was reported to him by other federal agents, and he had to have one or Complainant needed an exhaustive workup (medical tests) that would rule out a cause. He wrote there could be several issues.
On October 2, 2013, Complainant saw a private neurologist, who took his medical history, conducted an examination, and scheduled him for magnetic resonance imaging (MRI) of the brain to ensure that there were no structural injuries that occurred from his cardiac arrest, a (awake and sleep) EEG and basic laboratory tests. Complainant's medical history included sleep apnea use of a continuous positive airway pressure (CPAP) machine. After all this was done, Complainant followed up with the neurologist on October 24, 2013, who opined that from a neurologic perspective, Complainant was normal. The neurologist wrote that on the event that was reported at the truck stop (when Complainant was relieved from duty), he could not comment other than noting that Complainant just awoke from his scheduled sleep and normal sleepiness after waking up may explain this. By October 30, 2013, the OST contract physician requested that the neurologist review CW 3 and 4's statements. He explained that he wanted the neurologist to understand what the agents saw. Complainant followed up with the neurologist on November 26, 2013, and after reading the statements opined they were potentially revealing of a serious problem with Complainant's circadian cycle and recommended he see his sleep specialist to reassess him and his CPAP machine. The neurologist opined that if the sleep specialist clears Complainant, he should be supervised for a prudent time and then no further action would be needed. He assessed Complainant as having fatigue and malaise and obstructive sleep apnea. Based on this, the OST contract physician decided he needed a report from the sleep specialist to reinstate Complainant to HRP.
Complainant saw his physician sleep specialist on January 28, 2014. He last saw him in November 2011. The sleep specialist opined that a download from the CRAP machine showed Complainant was compliant with using it, and that he did not appear to be at any increased risk for falling asleep compared to the normal population.
The OST contract physician stated that he was ready to release Complainant to full duty, but did not immediately reinstate him to HRP because he was using an opiate patch for a neck disc herniation since January 2014, and he needed more information on the patch. But since Complainant said on February 5, 2014, that he did not need the pain patch and his treating physician opined there were no limitations on his pain, the OST contract physician reinstated Complainant to HRP on February 5, 2014, and to full duties.
In his April 29, 2014, affidavit, Complainant's 4th line supervisor, whose duty station is in Albuquerque, stated that while Complainant was out the Agency allowed him to continue working, but he was not performing his primary duties. ROI, Exh. F5, at bates stamp 271. In his March 31, 2014 affidavit, Complainant indicated that the back-pay relief he sought was for missed overtime due to not being allowed to perform travel courier duty.
On issue 2, the record reflects that under HRP, federal agents are required notify their supervisor of medication they are taking using an OST Medication Determination and Treatment Form. The form is then sent to the OST contract physician in Albuquerque, who approves or disapproves the federal agent for continuation in HRP while on the medication. Complainant's third line supervisor (S3), who duty station is Amarillo, stated that medication determinations are tracked to completion by his administrative assistant and are cataloged in a binder kept behind a counter in the administrative assistant's work area. Complainant stated that all employees have access to the binder where they can "record the medicine." S3 stated that only the supervisors or administrative assistant are given unsupervised access to the binder, and the binder is not accessible to all employees. S1 stated, however, stated that the binder is on administrative assistant's desk, and that "Employees may check their own medical determination. The information of other employees may also be accessible." ROI, Exh. F1, at bates stamp 312.
In its FAD, the Agency dismissed issue 5 for failure to state a claim. It reasoned that Complainant alleged that in reprisal his prior EEO activity, S1 tried to negatively influence CW1's rating of Complainant's performance on a February 23, 2014, trip, but there was no adverse action because Complainant nor any other agents on that convoy received an evaluation for the trip. The Agency found no discrimination on the remaining claims. It found that Complainant failed to make out a prima facie case of age discrimination because he failed to show that employees outside his protected age group received favorable treatment, and his speculation that management perceived older employees as having more medical issues was not enough to prove age discrimination. In finding no violation of GINA, the Agency found the record did not show Complainant's family history of heart conditions was disclosed or was improperly stored without proper confidentiality safeguards.
Regarding disability, the Agency found that management was aware Complainant went into cardiac arrest, and assumed it regarded him as having a disability. On being relieved of NED/travel duty, the Agency assumed without deciding that Complainant made out a prima facie case of disability discrimination. It found that management stated Complainant's cardiac arrest and or perceived heart condition was not the basis for suspending Complainant's NEDs/travel duty. Rather, the OST contract physician determined that the cause of Complainant's behavior on the September 22, 2013 trip was unclear, he posed a serious health and safety risk, and more medical testing was necessary. On issue 2, the Agency credited S3's account that the Amarillo binder with employee medication information is kept in a secured area and not accessible to employees. On Complainant being evaluated by Agency medics in the cab of his truck, the Agency found only authorized personnel were present therein. On issue 6, the Agency found that S1 denied baiting Complainant into an argument, there were no witnesses to their interaction, and hence Complainant did not show an adverse action occurred.
Regarding reprisal, the Agency found that Complainant had not yet engaged in EEO activity when he was removed from the September 22, 2013 trip, and the record showed he was relieved of duty on the trip based on management concerns for Complainant's and others health and safety after fellow agents reported issues about Complainant's demeanor and slow reaction times. The Agency found that Complainant did not claim reprisal on issue 2, and on issue 6 the Agency found S1 denied baiting Complainant.
The Agency also found that Complainant was not harassed.
ANALYSIS AND FINDINGS
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, Section B (Aug. 25, 2015) (available at eeoc.gov). Applying this standard, we find that issue 5 states a claim of reprisal discrimination.
We will assume, for purposes of analysis, that Complainant was regarded as being an individual with a disability. An essential function of Complainant's job was transporting nuclear weapons and weapons grade nuclear materials in ground vehicles and responding to natural and made-made threats, including executing para-military tactics to repel, contain, or attack a hostile force while ensuring the safety of the cargo and the public. A person is a "direct threat" if he poses a significant risk of substantial harm to the health and safety of himself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. The direct threat evaluation must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. 29 C.F.R. � 1630.2(r). The Agency suspended Complainant's NED/travel duties because it believed that until the reasons for his reported behavior on the September 22, 2013 trip was medically explained or comprehensive medical evaluation ruled causes out, he may pose a direct threat to himself or others.
Complainant believed that CW3 and 4 maliciously used HRP rules to get him off the trip and not ride with him because they feared driving with him based on his past medical history. According to S1's notes of his After-Action Review, Complainant stated that while he was driving, the vehicle needed constant adjustment to stay in a straight line. Complainant later affirmed that he drove through a sand storm with high winds, and on at least one occasion hit rumble strips. In his notes, S1 wrote that Complainant did not offer counter explanations for why he did not know the location of the interior light switch and radio nor the events that occurred at the second fueling station (stopping at the entrance, etc.). Further, some Federal Agents, including a Lead who were not riding with Complainant, variously attributed his behavior to needing to refamiliarize himself with things after being off travel duty for a long time, and being a generally a calm, easy going, slow working person.
Complainant averred that after roll call and vehicle assignments made on September 22, 2013, CW11 (Federal Agent) and CW12 (Lead Federal Agent) heard CW4 express consternation that he was riding with him, saying Complainant was a safety hazard and should not be on the job. The EEO investigator asked CW4 if he had any concern traveling with Complainant, and he responded that Complainant had been cleared by the OST contract physician. When asked if he heard any employees or spouses having concerns, he said his wife and some other spouses stated they were concerned based on Complainant's past medical history. CW11 stated that CW4 said he did not want to ride with Complainant but did not say why, and CW4 feels Complainant does not have the level of aggressiveness needed for the job - to easy going and passive. CW12 generally recalled that CW4 expressed concern about working with Complainant at some point, and some spouses of agents stated they did not want their husbands to ride with Complainant because they feared him having another cardiac arrest.
After Complainant left the trip, CW13 (Federal Agent) rode with CW 3 and 4 and in place of Complainant. Complainant wrote that CW13 said that when in the vehicle Complainant left, CW3 said that since Complainant was without oxygen for a time (with his cardiac arrest), he had some brain loss or damage. CW13 denied hearing this comment. CW3 stated that after Complainant left the trip, he was trying to figure out what could have happened to Complainant, and orally speculated Complainant may have some cognitive issues because of his cardiac arrest, or maybe he was tired and having a bad day.
Based upon our review of the record, we find by a preponderance of the evidence that the Agency reasonably and properly took account of CW 3 and 4's statements on Complainant's behavior on the trip in deciding to take him off travel duty and require more medical information before reinstating him into HRP and restoring his NED/travel duties, despite Complainant's belief to the contrary. Further, other stating he was relieved of duty in front of some others, Complainant does not explain how it was done in a humiliating manner. While embarrassing, we do not find this was discriminatory.
Agencies have a reasonable amount of time to determine if there is a direct threat. In making this calculation, we note that Complainant continued to work throughout the period he was denied travel duty, making things less urgent. Clinton C. v. Navy, EEOC Appeal No. 0120142575 (Dec. 2, 2016). We find that the Agency moved with all deliberate speed to decide on direct threat. We find persuasive the OST contract physician's explanation that in the absence of an explanation or extensive medical examination ruling out causes for Complainant's reported confusion, lack of alertness, erratic driving, and deep sleep from which he had difficulty awaking, he could not make a final determination on direct threat. The record contains extensive documentation on the process the Agency went through to gather the medical information needed to make this determination, and it understandably took Complainant and his physicians some time to provide the needed medical information. The OST physician's explanations for the information he required to make an assessment on direct threat is persuasive, and we find he did not request more than what was needed. Once he had what was needed, the OST physician promptly released Complainant to full duty. Also, the Agency continuing to allow Complainant to work while he was suspended from HRP points away from a finding of animus based on Complainant's age, disability, and reprisal for EEO activity.
We find that the Agency did not discriminate against Complainant on any bases when it did not pay for his emergency room visit or the medical examinations he took so he could be cleared to return to HRP, NED/travel duty. Nothing in the Rehabilitation Act requires an agency to pay for medical treatment or medical testing an employee does to present evidence he is not a direct threat. The record does not show Complainant was disparately treated regarding not receiving monetary reimbursement from the Agency. Complainant argues that under 5 C.F.R. � 339.304, the Agency is required to pay for medical examinations it requests be taken. While the record does not contain the version of 5 C.F.R. Part 339 in effect when the Agency did not decline payment, the current version only applies to situations where the Office of Personnel Management (OPM) permits medical documentation to be required and examinations to be conducted to determine the nature of a medical condition that affects safe and efficient performance. 29 C.F.R. � 339.102. The record in this case does not show any OPM oversight on this matter.
Complainant has not proven discrimination on issues 5 and 6. On issue 5 both S1 and CW1 credibly denied that S1 communicated that he wanted Complainant's performance on the trip lowered. Complainant was not at the meeting where ratings were discussed. On issue 6, S1 credibly denied he attempted to elicit a negative reaction from Complainant. He gave a credible, detailed account of what occurred in the conversation at issue.
We also find that Complainant has not proven harassment on any basis. We find by a preponderance of the evidence that while people at work ribbed Complainant about his cardiac arrest, he went along with the ribbing and the record does not show he expressed it was unwelcome until he was relieved from the September 22, 2013 road trip. The record does not indicate that thereafter the ribbing continued to a level that would constitute actionable harassment.
An employer must keep any medical information on applicants or employees confidential, with the following limited exceptions:
i. Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;
ii. First aid and safety personnel may be told if the disability might require emergency treatment;
iii. Government officials investigating compliance with the Rehabilitation Act must be given relevant information on request;
iv. Employers may give information to state workers' compensation offices, state second injury funds or workers' compensation insurance carriers in accordance with state workers' compensation laws; and
v. Employers may use the information for insurance purposes.
EEOC Enforcement Guidance: Premployment Disability-Related Questions and Medical Examinations, at Confidentiality section (Oct. 10, 1995) (Guidance); Complainant v. United States Postal Service, EEOC Appeal No. 0120132549 (Nov. 14, 2013).
While the above law does not exactly fit the situation where in the cab of Complainant's vehicle Agency medics CW 9 and 10 assessed his vitals, alertness and orientation with CW3 present, we find that the examination was sufficiently exigent (emergency treatment) that the disclosure caused by performing the exam with CW3 present did not violate the Rehabilitation Act. At the time, it was possible that Complainant had a serious medical condition, such as a stoke or bleed in the brain.
We also find, for the reasons found by the Agency, that it did not violate GINA.
We now turn to the binder. Based on the statements of Complainant and S1, we find by a preponderance of the evidence that while employees who review the binder may do so under supervision, in flipping through it to see their medical information they can see the information on other employees. Further, a supervisor who properly reviews the binder to view information on a subordinate employee can also see medical information on employees who were not under the supervisor's chain of command and hence had no need under paragraph (i) to see it. Accordingly, we find that the Agency violated the Rehabilitation Act regarding the binder. Even if Complainant voluntarily shared medications he was taking with the Agency, the Agency's confidentiality obligation extends to such a voluntary disclosure.
The Agency's dismissal of issue 2 for failure to state a claim is REVERSED. The Agency's finding of no discrimination on the remaining issues is AFFIRMED in part and REVERSED in part. Specifically, we find that the Agency violated the Rehabilitation Act by placing medical information on medications staff was taking in a binder was that could be viewed in a way by supervisors and employees who when reviewing the binder for a proper purpose, could also view information on others for which there is no listed legal exception to permit viewing the information. The Agency shall comply with the Orders below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within 45 days of the date of this decision, the Agency shall make the referenced binder with medical information in AOCC in Amarillo, Texas comply with the confidentiality requirements of the Rehabilitation Act, which were set forth herein.
2. Within 45 calendar days of the date of this decision, the Agency shall provide S3 and the administrative assistant who maintains the referenced binder training in the confidentiality requirements of the Rehabilitation Act and how to comply with them.
3. Within 120 calendar days of the date of this decision the Agency shall gather sufficient information to calculate Complainant's entitlement to compensatory damages with respect to the Agency's violation of Rehabilitation Act confidentiality requirements connected to the referenced binder. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission, and provide Complainant payment any amount it calculates he sustained.
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Office of Secure Transportation (OST), Agent Operations Central Command (AOCC) facility in Amarillo, Texas 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (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
December 27, 2017
__________________
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 The Agency captured this claim as Complainant being removed from the road trip and ordered to report to the emergency room for an evaluation. In Complainant's report of investigation rebuttal affidavit, which he includes with his appeal, Complainant wrote that the issue of concern is not that he was removed from the road trip and ordered to report to the emergency room, rather it was the way he was relieved of duty - in a humiliating manner - and the Agency should pay his emergency room bill given since it directed that he go there.
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