0120114271
03-06-2012
Lucia M. DeAngelis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Lucia M. DeAngelis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120114271
Agency No. 4E500009909
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 17, 2011, dismissing her 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 Clerk at the Agency’s Des Moines Post Office facility in Des
Moines, Iowa.
On October 28, 2009, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of disability
(unspecified). On August 17, 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 she learned
in July 2009 that information about her entitlement to protection under
the Family Medical Leave Act was included in the Agency’s Enterprise
Resource Management (eRMS) database.1
The Agency in this matter dismissed Complainant’s formal complaint on
the grounds of untimely EEO Counselor contact. The record indicates that
Complainant contacted an EEO Counselor regarding her concerns on July 29,
2009, and when informal processing of her complaint failed, she was issued
a Notice of Right to File an Individual Complaint on October 22, 2009.
In its final decision, Agency determined that Complainant’s
complaint was untimely in accordance with EEOC Regulation 29 C.F.R. §�
�1614.107(a)(2). The Agency determined that Complainant had constructive
knowledge of the time limitation for timely seeking EEO counseling as
evidenced by EEO posters on display at Complainant’s worksite as well
as her knowledge of the class complaint filed by the Union concerning
the eRMS information at issue in this mater. The Agency also found that
Complainant has not alleged that she was unaware of the time limitations
for EEO Counselor contact or that she was prevented for any reason from
timely contacting an EEO Counselor.
Moreover, the Agency stated that concerning the eRMS information at
issue, at least as of December 11, 2008, access to the eRMS system was
strictly controlled. The Agency contends therefore, that:
Even assuming, for the sake of 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 29, 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 her July
29, 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 in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(1). The Agency asserted that
the information listed in the eRMS is minimal and does not constitute
confidential medical information. The Agency also argues that the
information is maintained in accordance with Agency policy and not
for any discriminatory purpose, and has not been disclosed to anyone.
In addition, the Agency asserted that to the extent that Complainant is
alleging that this matter violates the FMLA, this is a collateral attack
on the FMLA process and Complainant should raise her concerns to the
Department of Labor (DOL). Furthermore, the Agency asserted that 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 follows.
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 she 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 she 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.
Upon review, the Commission determines that the Agency improperly
dismissed Complainant’s formal complaint on the grounds of untimely EEO
Counselor contact. The Commission is not persuaded by the Agency’s
assertion that since there was a class action case with Mailhandlers
on the same issue that Complainant, a Clerk, should have suspected a
violation with respect to her own medical information. 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. 05920506
(August 25, 1992). We find that the Agency has not met this burden.
Finally, we find that the Agency’s argument 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 she was not
aware of a disclosure of her medical information until July 2009, and
timely contacted an EEO Counselor on July 29, 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 on 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 this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. 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 6, 2012
__________________
Date
1 The Agency noted that Complainant’s complaint was previously held
in abeyance because it was part of a pending class compliant, Pevotaux
v. U.S. Postal Serv., Agency Case No. 1E-503-0054-09. 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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0120114271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114271