[Redacted], Sarah H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021002092 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sarah H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021002092 Agency No. 4G-320-0302-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 6, 2021, dismissing her complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales and Services/Distribution Associate, PS-06, at the Agency’s Post Office in Wewahitchka, FL. On December 12, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black/African American), disability, genetic information, and reprisal for prior protected EEO activity when, on August 5, 2020, Complainant’s postmaster revealed her private health information during an arbitration hearing on her Notice of Removal. 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. 2021002092 2 The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant alleged the Agency violated her Health Insurance Portability and Accountability Act (HIPAA) and/or the Privacy Act rights when her postmaster disclosed her private health information at the arbitration hearing. The Agency determined that Complainant’s allegation that the Agency violated her HIPAA and/or Privacy Act rights was beyond the purview of the EEO process. As a result, the Agency dismissed the complaint for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). With specific regard to the HIPAA violation, the Commission has previously determined that matters concerning the HIPAA are not within regulations enforced by the Commission. See Grove v. U.S. Postal Serv., EEOC. Appeal No. 0120110456 (Jan. 5, 2012); and Price v. U.S. Postal Serv., EEOC Appeal No. 0120111033 (Dec. 8, 2011). Following a review of the record, we find the Agency properly dismissed Complainant’s complaint for failure to state a claim. The Department of Health and Human Services’ Office of Civil Rights enforces the HIPAA privacy rule and the administrative EEO complaint process is the improper forum to raise an allegation of a HIPAA violation. Lee v. U.S. Postal Serv., EEOC Request No. 0520110481 (November 4, 2011). Additionally, to the extent that Complainant is alleging a violation of the Privacy Act, we note that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records, and jurisdiction rests exclusively in the United States District Courts. See Bucci v. Dep't of Educ., EEOC Request Nos. 05890289, 05890291 (Apr. 12, 1989). Consequently, the EEO complaint process is again the improper forum to raise an allegation of a Privacy Act violation. Moreover, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). 2021002092 3 A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's adjudicatory proceeding, such as the grievance process, the workers' compensation process, or state or federal litigation. See Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). The Commission has no jurisdiction to interfere with the rulings of an arbitrator, particularly in areas touching the arbitrator's authority to make. See Ellis v. United States Postal Service, EEOC Request No. 05920011 (March 12, 1992). In the instant case, the claim concerns a privacy violation that took place during an arbitration proceeding. The proper forum for Complainant to have raised her challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. As such, we find the Agency properly dismissed Complainant’s complaint for failure to state a claim. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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, 2021002092 4 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. 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. 2021002092 5 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 June 7, 2021 Date