0120120630
03-30-2012
Marilyn J. Pherigo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Marilyn J. Pherigo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120630
Agency No. 4E500013509
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 25, 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 Urbandale Carrier Annex facility in Urbandale, Iowa.
On November 10, 2009, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability. On October 25, 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] allegedly became aware in (or about) August 1, 2009, that information about [her] 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 August 5, 2009. The Agency stated that "[i]n your formal complaint you identified the dates of incident of March 24, 2006 and August 24, 2007."
The Agency also 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 August 5, 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 August 5, 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 her 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.
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.
The Agency improperly dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. Complainant in her pre-complaint form and the EEO Counselor's Report lists August 1, 2009, as the date of the alleged incident. Complainant contacted the EEO Counselor on August 5, 2009, within 45 days of the alleged incident.
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 her initial EEO contact. The Agency asserts that Complainant lists "March 24, 2006 and August 24, 2007" as the dates of the alleged violation and thus Complainant's August 5, , 2009 contact is untimely. However, we disagree. Complainant is alleging that the improper disclosure of her medical information occurred between around those dates, but that she was not aware of the alleged violation until August 1, 2009.
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, 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. 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 she was not aware of a disclosure of her medical information until August 1, 2009, and timely contacted an EEO Counselor on August 5, 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 30, 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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0120120630
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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