0120120539
03-19-2012
Jeffrey J. Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120539
Agency No. 1E501022309
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated October 11, 2011, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mailhandler at the Agency’s P&DC facility in Des Moines, Iowa.
On October 17, 2009, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of disability. On
October 112, 2011, the Agency issued a final decision dismissing the
complaint. Therein, the Agency framed Complainant’s claim in the
following fashion:
Complainant alleges discrimination based on disability when he allegedly
became aware on July 23, 2009,that information about [his] entitlement
to protection under the Family and Medical Leave Act was included in
the Postal Service’s Enterprise Resource Management (eRMS) database.1
The Agency dismissed Complainant’s formal complaint on the grounds
of untimely EEO Counselor contact. The Agency noted that Complainant
initiated EEO Counselor contact on July 24, 2009.
The Agency noted that the record contains a Declaration from the Program
Manager of Resource Management (PM1). The Agency asserted that PM1
states that at least as of December 11, 2008, access to the eRMS system
was strictly controlled. The Agency stated:
Even assuming, for the sake or argument only, that a possible violation
involving disclosure of confidential medical information from eRMS could
have occurred, such a theoretical violation could only have occurred
prior to December 11, 2008. Your July 24 2009 request for pre-complaint
counseling would, therefore, be untimely.
The Agency further reasoned that Complainant should have known of the
alleged breach in confidentiality more than 45 days before his August
1, 2009 contact date because of a pending class action involving Agency
Mailhandlers, Verkade v. U.S Postal Serv., Agency Case No. 1J-494-0018-07.
Specifically, the Agency stated that:
[t]he Verkade class was settled on March 31, 2009 and the local settlement
with the Mailhandlers in Des Moines were completed on May 11, 2009.
The Mailhandlers union distributed information to its membership prior
to the date to advise them of the existence of the Verkade case and
the issue raised. It stands to reason that if a significant segment of
the workforce in Des Moines acted diligently and filed in a reasonably
timely manner concerning the alleged problem, there is no excuse for
the remainder of the workforce or other unions not to have acted in a
similarly diligent fashion.
The Agency also dismissed Complainant’s formal complaint on the
alternate grounds of failure to state a claim. The Agency asserted that
the information listed in eRMS is “vague and generic” and cannot
be considered confidential medical information. The Agency asserted
that to the extent Complainant is alleging that this matter violates
the FMLA this is a collateral attack on the FMLA process and Complainant
should raise his concerns to the Department of Labor (DOL). Furthermore,
the Agency asserted that the Freedom of Information Act and Privacy Act
provide exclusive statutory frameworks for governing the disclosure and
access to information contained in federal records and that jurisdiction
lies with the district courts.
The instant appeal followed.
CONTENTIONS ON APPEAL
In his appeal, Complainant states he was unaware of the problem until he
was informed about the matter in July 2009. He asserts that even though
he is a mailhandler, the union never told him about the class action.
The Agency requests that the Commission affirm its decision dismissing
the complaint.
ANALYSIS AND FINDINGS
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Dep’t of the Navy,
EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Agency improperly dismissed Complainant’s formal complaint on
the grounds of untimely EEO Counselor contact. Complainant in his
pre-complaint form and the EEO Counselor’s Report lists 2006-2008 as
the dates of the incidents, and states he learned about the matter
on July 24, 2009. Complainant contacted the EEO counselor that same day
which is within 45 days of learning of the alleged incidents.
We are not persuaded by the Agency’s assertion that Complainant
was aware of the alleged violation (improper disclosure of medical
information) prior to 45 days from his initial EEO contact. The Agency
asserts that Complainant lists “2006-2008” as the dates of the
alleged violation and thus Complainant’s July 24, 2009 contact
is untimely. However, we disagree. Complainant is alleging that the
improper disclosure of his medical information occurred between 2006-2008,
but that he was not aware of the alleged violation until around July
24, 2009. Complainant on appeal states he filed his EEO Complainant
after being informed of the matter.
We are also not persuaded by the Agency’s assertion that since
there was a class action case with Mailhandlers on the same issue that
Complainant, should have suspected a violation with respect to her own
medical information. Complainant asserts he did not know about the class
actions and did not receive any notice of such. Where as here, there
is an issue of timeliness, “[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness.” See Guy v. Dep’t of Energy, EEOC Request No. 05930703
(Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request
No. 05920506 (Aug. 25, 1992). We find that the Agency has not met
this burden.
Finally, we find that the Agency’s arguments that no violation could
have occurred after December 11, 2008, because the Agency took steps to
control access to eRMS goes to the merits of Complainant’s complaint.
Moreover, as set forth above, Complainant is alleging that he was not
aware of a disclosure of his medical information until July 2009, and
timely contacted an EEO Counselor on July 24, 2009.
Dismissal for Failure to State a Claim
The Commission finds that the Agency improperly dismissed Complainant’s
formal complaint for failure to state a claim. The only questions
for an agency to consider in determining whether a complaint states a
claim are: (1) whether complainant is an aggrieved employee; and (2)
whether complainant raises employment discrimination on a basis covered
by EEO statutes. If these questions are answered in the affirmative,
an agency must accept the complaint for processing regardless of its
judgment of the merits. See Odoski v. Dep’t of Energy, EEOC Appeal
No. 01901496 (April 16, 1990).
In the instant matter, Complainant is alleging that the Agency improperly
disclosed confidential medical information. Generally, medical information
must be kept confidential.2 See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the American with Disabilities Act
(“Guidance”), Notice No. 915.002 (rev. Oct 17, 2002). Thus, we find
that Complainant is alleging a per se violation of the Rehabilitation Act.
See Valle v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997)
(reversing an Agency’s dismissal for failure to state a claim finding
Complainant was alleging that her medical information was improperly
disclosed which constitutes a per se violation of the Rehabilitation Act).
The Agency’s assertions that the medical information at issue does not
constitute confidential medical information under the Rehabilitation Act
goes to the merits of Complainant’s complaint and is not relevant to the
procedural issue of whether Complainant has set forth an actionable claim.
See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July
19, 1996).
The Agency also improperly dismissed Complainant’s formal complaint
finding that it was a collateral attack on other processes. We agree
with the Agency that the Commission does not have jurisdiction over
the Freedom of Information Act or Privacy Act. However, as set forth
above, we find that the crux of Complainant’s formal complaint is that
the Agency improperly disclosed confidential medical information in
violation of the Rehabilitation Act. Thus, Complainant has set forth
an actionable claim. Furthermore, while Complainant may be claiming
that the alleged improper disclosure involved some medical information
related to an FMLA condition, we find that the crux of Complainant’s
complaint is that the Agency violated the Rehabilitation Act (not the
FMLA) when it improperly disclosed confidential medical information.
CONCLUSION
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s formal complaint and we REMAND this matter to the Agency
(defined herein, as an alleged violation of the Rehabilitation Act by
unlawfully disclosing Complainant’s confidential medical information)
in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance
with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue
a final decision within sixty (60) days of receipt of Complainant’s
request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (M0610)
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 9-18 (November 9, 1999).
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
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
March 19, 2012
__________________
Date
1 The Agency noted that Complainant’s complaint was previously held
in abeyance because it was part of a pending class complaint, Pevoteaux
v. U.S. Postal Serv., Agency Case No. 1E-502-0054-09. The Agency further
noted that an EEOC Administrative Judge (AJ) issued a decision finding
that the matter did not satisfy the prerequisites for class certification
and that the Agency implemented the AJ’s decision.
2 The limited exceptions to the ADA confidentiality requirements are:
(1) supervisors and managers may be told about necessary restrictions on
the work or duties of the employee and about necessary accommodations;
2) first aid and safety personnel may be told if the disability might
require emergency treatment; 3) government officials investigating
compliance with the ADA must be given relevant information on request.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the American with Disabilities Act (“Guidance”),
Notice No. 915.002 (rev. Oct 17, 2002), fn 111.
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0120120539
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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