Lucia M. DeAngelis, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionMar 6, 2012
0120114271 (E.E.O.C. Mar. 6, 2012)

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