EEOC Appeal No. 0120132668
01-01-2009
Haydee A. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Haydee A.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120132668
Agency No. HS-FEMA-22437-2012
DECISION
On July 2, 2013, Complainant filed an appeal from the Agency�s May 29, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. ��1614.405(a). For the following reasons, the final decision is AFFIRMED in part and REVERSED in part.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant has established discrimination by preponderant evidence on the basis of disability when the Agency violated Complainant�s medical confidentiality and denied her request for reasonable accommodation; and (2) whether the Agency properly dismissed Complainant�s reprisal claim, i.e., that someone at the Agency gave false statements about her writing skills during an Department of Defense (DOD) background security investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Attorney, GS-14, in the Agency�s Office of Chief Counsel in Washington, DC. In this capacity, she was responsible for advising and assisting with the legal aspects in all matters within the jurisdiction of the General Law Division, including copyright, patent, trademarks, contracts, personnel, property, finance, freedom of information, privacy, training and education, and administrative procedure. See Report of Investigation (ROI), F9 at 2.
On July 16, 2012, Complainant filed an EEO complaint alleging discrimination on the basis of disability (knee/difficulty walking) when, on May 3, 2012, her medical information was impermissibly disclosed, and when her request for reasonable accommodation was denied. Complainant later amended her complaint to add the basis of reprisal when she learned that, during a Department of Defense (DOD) security investigation into her background, someone at the Agency raised a false allegation about her writing skills.
The Agency accepted the allegations of disability discrimination for investigation but dismissed the allegation of reprisal discrimination for failure to state a claim as a collateral attack on another proceeding. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or, in the alternative, a final agency decision based on the ROI. Complainant requested a final agency decision.
In accordance with Complainant�s request, the Agency issued a final decision pursuant to 29 C.F.R. ��1614.110(b), in which it found that Complainant had not established discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the Agency�s final decision is incorrect in law and fact, and requests that the Commission issue a decision reversing the Agency�s findings. For its part, the Agency requests that the Commission affirm its final decision.
STANDARD OF REVIEW
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 Chap. 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�).
ANALYSIS AND FINDINGS
Disability Discrimination
1. Medical Confidentiality
Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14. These requirements also extend to medical information that an individual voluntarily discloses to an employer. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000) (Guidance I). The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired or the employment relationship ends. See ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, at 18 (October 10, 1995) (Guidance II).2
These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. See Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003); Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000); Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (Jan. 11, 2011), req. for recon. denied, EEOC Request No. 0520110302 (Apr. 29, 2011).
The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement: (1) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (2) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (3) government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. ��1630.14; Guidance I at 4. The Commission has also interpreted the regulation to allow employers to disclose medical information (4) to state workers' compensation offices, state second injury funds, workers' compensation insurance carriers, and to health care professionals when seeking advice in making reasonable accommodation determinations. Guidance I at 4, n.10. Additionally, (5) employers may use medical information for insurance purposes. Id.
The record reflects that on May 3, 2012, Complainant sent her first-level supervisor (S1) an email indicating that Complainant would be taking leave on May 7, 2012, to see an orthopedic surgeon to discuss knee surgery. Upon receiving the email, S1 forwarded the information contained therein to two Deputy Associate Chief Counsels (D1 and D2) because, according to the Agency, S1 wanted them to be aware of Complainant�s absence as it might affect their assignment or processing of work during the day on which Complainant was unavailable.
The Agency�s disclosure clearly does not fall within exceptions 2-5 above. A fair reading of the evidentiary record reveals the Agency�s belief that S1 appropriately disclosed Complainant�s medical information pursuant to exception 1. However, we find this argument to be in error, as S1 could have informed D1 and D2 of Complainant�s unavailability without revealing information regarding Complainant�s medical condition or surgical needs. That is especially true in this case, as nowhere in the record is there an indication that Complainant�s medical condition restricted her work or duties. There is only the indication that Complainant would be absent from work on a particular day.
Further, Complainant is not required to prove that the Agency disclosed her confidential medical information to unauthorized persons. The plain language of the statute and regulation expressly states that medical information must be �collected and maintained on separate forms and in separate medical files.� 42 U.S.C. � 12112(d)(3)(B), (4)(C); 29 C.F.R. ��1630.14(c)(1). The Agency's failure to maintain Complainant's medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure.
Upon review, the Commission finds that the Agency violated the Rehabilitation Act when S1 revealed Complainant�s medical information regarding her need for surgery to unauthorized persons and failed to collect and maintain such information in separate and appropriate medical files.
2. Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. ��1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F. R. ��1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p).
The record reflects that on May 2, 2012, D1 requested that Complainant come to his office to discuss a discrimination complaint which Complainant was assigned to litigate. The next day, Complainant requested that the meeting be moved to her office due to an intermittent knee condition that made it difficult at times to walk. According to Complainant, D1 responded that he was too busy and that Complainant needed to come to him. See ROI, at Exhibit (Ex.) A. Complainant believes this response constitutes a denial of reasonable accommodation as this required her to walk from the building in which she was located to the building in which D1 worked.
In this case, the evidentiary record reveals that Complainant had knee problems which were intermittent and only problematic when she had to walk to meetings in other buildings. We note that Complainant provided this information via testimony and there is no other medical information in the file. This makes it difficult for the Commission to determine to what extent or degree Complainant is substantially limited in the major life activity of walking. That being the case, we find that Complainant has not presented sufficient evidence to show she is substantially limited in the major life activity of walking. Accordingly, we find that Complainant has not established she is an individual with a disability entitled to coverage under the Rehabilitation Act. To the extent that D1 regarded Complainant as an individual with a disability because he was aware of her knee condition and that it had some effect on her ability to walk, we note that individuals covered only under the �regarded as� prong are not entitled to reasonable accommodation. 42 U.S.C. � 12201(h). Thus, we find that Complainant has not established she was denied a reasonable accommodation to which she was otherwise entitled.
Reprisal Discrimination
The Commission regulations state that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes, that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition or in retaliation for engaging in protected EEO activity. See 29 C.F.R. ��1614.103(a).
Complainant alleges discrimination on the basis of reprisal when, on October 2, 2012, she was informed during a DOD security investigation into her background (for a position which she had accepted with the Department of the Air Force) that someone told the DOD investigator that Complainant left her position at the Agency because of her �poor writing skills.� The Agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim after determining it constituted a collateral attack on another process. See ROI, Final Agency Decision, at 5.
The Commission will not review an agency's determination with regard to the substance of a security clearance decision. See Policy Guidance on the Use of the National Security Exception Contained in � 703 (g) of the Civil Rights Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989); Dep�t of the Navy v. Egan, 484 U.S. 518, 528-529 (1988). The Commission has previously held that, once statements gathered during the investigation are included in the security clearance investigative report, the statements are �squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction.� Schroeder v. Dep�t of Defense, EEOC Request No. 05930248 (Apr. 14, 1994); Complainant v. Dep�t of Defense, EEOC Appeal No. 0120122688 (Jan. 16, 2014).
We note, however, that while the Commission will not review the substance of security clearance decisions, it has authority to review an Agency's decision to initiate review of a complainant's security clearance status, as this decision is not the result of any substantive decision making process. Chatlin v. Dep�t of the Navy, 05900188 (Jun. 1, 1990); Anderson v. Dep�t of the Navy, EEOC Appeal No. 0120092413 (Oct. 16, 2009). There is no evidence the Agency initiated the background investigation at issue in this case. Accordingly, we find that the Agency properly dismissed this issue for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that that the Complainant established discrimination when her medical confidentiality was violated. We find that Complainant did not establish disability discrimination when she was denied a reasonable accommodation. Finally, we find that the Agency properly dismissed Complainant�s reprisal claim for failure to state a claim. Accordingly, the Commission AFFIRMS in part and REVERSES in part the Agency�s final decision. The complaint is REMANDED for compliance with this decision and the Order below.
ORDER
Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions:
A. Ensure that Complainant�s medical information is maintained in a separate and appropriate medical file.
B. Conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of harm caused by divulging Complainant�s medical information. The Agency shall afford Complainant an opportunity to establish a causal relationship between the disclosure and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she is entitled to and shall provide all relevant information requested by the Agency. The Agency shall issue a new Agency decision awarding compensatory damages to Complainant.
C. Provide four hours of training to S1 regarding her responsibilities under the Rehabilitation Act, placing a special emphasis on the Agency�s obligation not to divulge employees� medical information in a manner inconsistent with that allowed by the Rehabilitation Act and the Agency�s responsibility to maintain employees� medical information in separate and appropriate medical files.
D. Post at the Office of Chief Counsel, Washington, DC, copies of the notice discussed below.
E. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of her departure date.
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 all of the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Office of Chief Counsel in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. ��1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. ��1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. ��1614.501.
IMPLEMENTATION OF THE COMMISSION�S DECISION (K0610)
Compliance with the Commission�s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency�s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission�s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. ��1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission�s order prior to or following an administrative petition for enforcement. See 29 C.F.R. ���1614.407, 1614.408, and 29 C.F.R. ��1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled �Right to File a Civil Action.� 29 C.F.R. ���1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. ��1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party�s timely request for reconsideration. See 29 C.F.R. ��1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 ��VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. ��1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. ��1614.604(c).
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
__________________
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 Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. � 791(g)); see also 29 C.F.R. � 1614.203(b). The ADA Amendments Act (ADAAA), Pub. L. 110-325, 122 Stat. 3553 (2008), became effective on January 1, 2009, and the Commission published revised regulations reflecting the ADAAA on March 25, 2011, 76 Fed. Reg. 16978. Because Complainant challenges Agency actions that occurred in 2012, the ADAAA standards apply to this case.
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