0520110481
11-04-2011
Hugh E. Lee, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Hugh E. Lee, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520110481
Appeal No. 0120102032
Agency No. 1H-326-0017-07
DENIAL
Complainant timely requested reconsideration of the decision in Hugh
E. Lee, Jr. v. United States Postal Service, EEOC Appeal No. 0120102032
(Apr. 8, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
In our previous decision, the Commission found that the Agency did
not breach a February 26, 2009, settlement agreement into which the
parties entered. The settlement agreement provided, in pertinent
part, that the District Reasonable Accommodation (DRAC) process would
determine whether Complainant could perform the essential functions of
his official position as an Electronic Technician without or without a
reasonable accommodation. The agreement further stated that if the DRAC
determined that Complainant was able to perform the essential functions
of the Electronic Technician position with or without an accommodation,
the Agency would return him to his Electronic Technician position and pay
him for half of the overtime and holiday pay he would have earned if he
had been placed in the Electronic Technician position on March 19, 2008.
Additionally, the agreement provided that if the DRAC determined that
Complainant could not perform the essential functions of the Electronic
Technician position, he would remain in his limited-duty Clerk assignment.
In his request for reconsideration, Complainant contends that the Agency
violated the Health Information Privacy Act1 and the Rehabilitation Act
when it gave unjustified and unlawful access to his protected medical
records, failed to acknowledge his disability, and failed to respond
to his requests for a reasonable accommodation. Complainant further
contends that the previous decision erred in finding that the Agency
properly examined his ability to perform the essential functions of the
Electronic Technician position under the terms of the agreement.
After a thorough review of the record in this case, we find that our
previous decision properly found that the Agency did not breach the
agreement or act in bad faith when DRAC determined that Complainant
was not able to perform the core physical functions of an Electronic
Technician position. Moreover, to the extent that Complainant
contends that the Agency has denied him a reasonable accommodation,
improperly disclosed his medical documentation, or otherwise violated the
Rehabilitation Act since the execution of the settlement agreement, we
note that we have held that such claims of further discrimination should
be processed as a new complaint, rather than as a breach allegation.
See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990). Therefore, if Complainant wants to pursue such claims,
he should raise them as new EEO claims, if he has not already done so.
Regarding Complainant’s claim that the Agency violated the HIPAA,
we note that the Department of Health and Human Services’ Office for
Civil Rights enforces this statute, not the Commission.
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120102032 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2011
Date
1 We presume that Complainant intended to refer to the federal statute
governing health information privacy, the Health Insurance Portability
and Accountability Act of 1996 (HIPAA).
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0520110481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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