[Redacted], Collin R., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Apr 27, 2021

Appeal No. 2019005547 (E.E.O.C. Apr. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Collin R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2019005547 Hearing No. 570-2018-00347X Agency No. FBI-2012-00124 DECISION On July 31, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 2, 2019 final order concerning his equal employment opportunity (EEO) complaint alleging 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 Special Agent at the Agency’s Field Office in Washington, D.C. This appeal concerns the first of two EEO complaints Complainant filed after the Agency’s Office of the Inspector General (OIG) launched an investigation into his alleged nondisclosed use of prescription drugs. In this 2012 EEO complaint (identified as Agency No. FBI-2012- 00124) (hereinafter referred to as “Complaint 1”), Complainant claimed disability discrimination when FBI officials referred him for an OIG investigation, subjected him to a medical inquiry, and shared information about his medical condition and treatment with his colleagues. 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. 2019005547 2 The record indicates that the OIG ultimately submitted a report determining that Complainant committed misconduct in providing false or misleading information on his medical history forms. In lieu of removal, the Agency issued Complainant a 20-day suspension. In his second EEO complaint (identified as Agency No. FBI-2014-00066) (hereinafter referred to as “Complaint 2”), Complainant alleged that the 20-day suspension was discriminatory. The Agency issued a final decision on Complaint 2 and Complainant appealed to EEOC. In Newton P. v. United States Department of Justice, EEOC Appeal No. 0120170495 (October 10, 2018), the Commission found that the Agency articulated legitimate, non-discriminatory reasons for issuing the 20-day suspension and the record evidence did not support a finding that the Agency was motivated by discriminatory animus in issuing the disciplinary action. Complainant requested a hearing on Complaint 1 before an EEOC Administrative Judge (AJ). The AJ determined the matter consisted of three claims under the Rehabilitation Act: 1) whether the FBI discriminated against Complainant, based on disability, by referring Complainant for an OIG investigation in 2012; 2) whether a March 20, 2012, interview (part of that OIG investigation), subjected him to an unlawful medical inquiry; and 3) whether the FBI improperly disclosed his medical information to unnamed colleagues. On May 24, 2019, the AJ issued a decision dismissing Complainant’s three claims. The AJ dismissed Claims 1 and 2, determining the merits of these claims had already been fully addressed in EEOC’s decision in Appeal No. 0120170495 on Complaint 2. In that regard, the AJ noted that the appellate decision determined that the Agency demonstrated legitimate, non- discriminatory reasons for issuing Complainant the 20-day suspension that directly resulted from the OIG investigation and medical inquiry. The AJ also dismissed Claim 3, pursuant to 29 CFR § 1614.107 (a)(1), determining it was too vague and was not supplemented by any evidence from Complainant despite the AJ's request that Complainant do so. The Agency subsequently issued a final order adopting the AJ’s dismissal of the complaint. This appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(b) provides that an EEOC AJ may dismiss an EEO complaint pursuant to the procedural grounds delineated in § 1614.107, on their own initiative after notice to the parties, or upon motion of the agency. Here, the AJ exercised this authority. The record shows that Complainant received appropriate notice of the AJ’s intent to dismiss and filed a response, which the AJ considered in making the decision to dismiss the complaint. 2019005547 3 Claims 1 and 2 - Same Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. We conclude that the AJ properly dismissed Claims 1 and 2 as already considered and decided in in Appeal No. 0120170495 on Complaint 2. Claims 1 and 2 concern whether the FBI discriminated against Complainant by referring him for an OIG investigation and the related medical inquiry. The appellate decision in Appeal No. 0120170495, expressly found that the record was devoid of any evidence that Complainant's proposed removal and suspension, which directly resulted from the OIG investigation and medical inquiry, were motivated by any discriminatory animus. This conclusion included a finding that Complainant failed to prove that he was treated more harshly than other similarly situated employees. The decision in Appeal No. 0120170495 also examined the evidence of the Agency's reasons for the referral to OIG, as well as the scope of OIG's medical questions. The decision found that Complainant “was obligated to disclose the use of medications" at issue, providing the legitimate reason for OIG to ask about Complainant's prescriptions. In sum, we conclude that EEOC’s decision in Appeal No. 0120170495 on Complaint 2 sufficiently adjudicated the issues raised in Claims 1 and 2 of Complaint 1 such that the AJ’s dismissal of those claims is adequately supported. Claim 3 - Failure to State a Claim The AJ also dismissed Claim 3 where Complainant alleged that the Agency improperly disclosed medical information. The Rehabilitation Act requires federal employers to protect the privacy of medical information they collect. Information "regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that supervisors and managers may be informed regarding necessary restriction on the work or duties of the employee and necessary accommodation." 29 C.F.R. § 1630.14(c). Improper dissemination is "a per se violation of the Rehabilitation Act, and no showing of harm beyond the violation would be necessary." Hampton v. United States Postal Serv., EEOC Appeal No. 01A00132 (April 13, 2000). Finding this claim as expressed by Complainant to be too ambiguous, the AJ ordered Complainant to provide more information, including the nature of the medical information, who disclosed the information, who received the information, and when the disclosure(s) occurred. Complainant responded that "much of the information sought by the Administrative Judge is not yet completely known to Complainant." Complainant did indicate that the Assistant Special Agent in Charge may have disclosed medical information about him to unnamed "colleagues" in September 2010. He also alleged that in 2011, when the OIG interviewed some of his coworkers as part of its investigation of him, the investigators may have revealed some of Complainant’s medical information to them. We agree with the AJ’s finding that Complainant’s responses to the AJ’s request for information was inadequate and the claim continued to lack necessary 2019005547 4 specificity and detail. It is not possible to adjudicate Complainant’s claim without the basic information requested by the AJ. As such, we also affirm the dismissal of Claim 3. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision dismissing the complaint in its entirety. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2019005547 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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 April 27, 2021 Date