0520160456
09-15-2016
Melani F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melani F.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520160456
Appeal No. 0120142156
Hearing No. 460-2014-00010X
Agency No. 200305802013100507
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120142156 (June 23, 2016). 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(c).
At the time giving rise to this complaint, Complainant worked as a Physical Therapy Tech at the Agency's Michael E. DeBakey VA Medical Center (VAMC) in Houston, Texas. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and age (48) when:
1. From January 2012 through the present a Physical Therapist (PT1) has followed Complainant around the facility;
2. In July 2012, Complainant reported to S1 that PT1 had been following her around the facility, and S1 responded by stating, "Maybe it's your perception;"
3. On October 10, 2012, S1 failed to recommend Complainant for a monetary award even though S1 recommended an award for the rest of the department;
4. On November 7, 2012, Complainant learned that Human Resources determined that she did not meet the minimum requirements to be referred for the position of Patient Relations Assistant, GS-07, vacancy # JB-12-APA-762618;
5. On November 9, 2012, PT1 listened to a conversation that Complainant was having and then reported the content of the conversation to S1;
6. On January 11, 2013, PT1 stated to Complainant in a sarcastic tone, "Isn't it a little early for you to be leaving?"
7. On January 11, 2013, Complainant learned that a Physical Therapist (PT2) and a Program Support Assistant (PS1) accessed Complainant's medical file without her authorization; and
8. On January 14, 2013, Complainant learned that she was scheduled to work with PT1 on January 20, 2013, even though Complainant had requested not to work with PT1.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's decision by summary judgment in favor of the Agency, concluding Complainant failed to prove his discrimination claims. However, the decision also found there was a per se violation of the Rehabilitation Act when Complainant's co-workers accessed her VAMC patient records without a valid business-related reason for doing so.
The Agency appealed. The Agency concedes that "there was indeed a per se violation of the Rehabilitation Act." While accepting the finding of a violation and most of the remedial action ordered, the Agency contests the following portion of the order in Appeal No. 0120142156:
4. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall ensure that its patient data base is managed in such a manner so as not to allow the release of confidential medical information in violation of the Rehabilitation Act.
The Agency argues that being ordered to ensure that its patient data base was managed in such a manner as not to allow the release of confidential medical information exceeds our jurisdiction and is impossible to perform. We disagree.
This is a unique situation where Complainant is both an employee of the Agency and a patient of its medical services. We clarify that we understand that the Agency cannot guarantee that there will never be an unauthorized release of confidential medical information at any time in the future. However, with this order, we are requiring the Agency to review its policies and standard operating procedures concerning the protections and safeguards it has in place to prevent unauthorized access to an employee's medical records, and to make any necessary modifications to strengthen those protections. The results of such a review can be reported to EEOC's Compliance Officer. As part of this review, the Agency should examine its disciplinary policies to see whether they support appropriate consequences for employees wrongfully accessing employee medical information.
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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120142156 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency, to the extent it has not already done so, shall comply with the Order as set forth below.
ORDER
The Agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within 60 days of the date Complainant receives the Agency's notice. The Agency shall complete any investigation on the claim for compensatory damages within 60 days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
2. Within one hundred and twenty (120) days of the date on which this decision becomes final, the Agency shall provide EEO training regarding the confidentiality of medical information under the Rehabilitation Act to all Agency employees responsible for improperly releasing Complainant's confidential medical information.
3. Within one hundred and twenty (120) days of the date on which this decision becomes final, the Agency shall consider taking disciplinary action against the Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
4. Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall, as further clarified by this decision, ensure that its patient database is managed in such a manner so as not to allow the release of employee confidential medical information in violation of the Rehabilitation Act.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Michael E. DeBakey VA Medical Center facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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