Roy F.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 8, 2018

0120172205 (E.E.O.C. Nov. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Roy F.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120172205

Hearing No. 430-2016-00296X

Agency No. DON-15-62381-00764

DECISION

On June 13, 2017, 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
May 15, 2017, 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. For the following reasons, the
Commission VACATES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electronics
Technician, GS-0856-12, with the Naval Oceanographic Office (NAVO), Stennis Space Center.
During the relevant time-period, NAVO and the Military Sealift Command (MSC) entered into a
Memorandum of Understanding (MOU) to operate the USNS Bruce S. Hazeen (Hazeen), a naval
ship. Both NAVO and MSC are under the Department of the Navy and the U.S. Department of
Defense (DOD).

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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MSC also contracted with Horizon Lines Inc. to run the ship. CPT was employed by Horizon
Lines, Inc. as the Captain of the Hazeen. The Hazeen left port on May 23, 2009 with Complainant
on board.

NAVO is responsible for the medical clearance of its personnel before issuing travel documents
to board any vessel. Complainant had been issued travel documents to be aboard the Hazeen. In
the MOU between NAVO and MCS, the Master (aka Captain) and MCS do not have the right to
determine if a NAVO employee is fit for duty and to sail.

During the relevant timeframe, Complainant had a heart condition (Cardiac Dysrhythmia), but had
been cleared by NAVO's Occupational Health personnel for duty on April 23, 2009 and May 13,
2009. After the Hazeen left port, it was discovered that Complainant inadvertently left his medical
documentation at home.

The Senior NAVO Representative (SNR) on board the Hazeen contacted his superior at NAVO
and was told to allow Complainant to stay on board, but have him brief the Medical Department
Representative (MDR), an MCS employee, about his condition. Complainant told MDR about his
condition, that he had been cleared by Occupational Health personnel prior to being issued his
documents to sail by NAVO, and that he would have his medical record scanned and sent to MDR.

Complainant’s medical documentation was scanned and emailed to MDR on May 24, 2009. On
May 24, 2009, SNR and CPT received copies of the documentation clearing Complainant to work
and sail at sea from MDR. On May 26, 2009, Complainant's medical information was sent (on
four different occasions) to a Navy employee (NE) with the same exact name as Complainant.
Complainant’s medical information was also sent to 12 additional individuals, including: (1)
CPT’s immediate supervisor at Horizon (H1); (2) two individuals (MCA1 and MCA2) who work
in Contract Administration for MCS’s Special Mission Ships;2 (3) the Deputy Operations Officer,
Commander Task Group CTG 73.7 (CTG1); (4) the Special Missions Ships Officer CTG 73.7
(CTG2)3; (5) the individual who SNR directly reports to at NAVO (N1); (6) the individual who
N1 directly reports to at NAVO (N2); (7) the individual who N2 directly reports to at NAVO (N3);
and (8) four additional individuals who have not been identified in the record (N4, N5, N6, and
N7). In a letter dated June 11, 2009, the Agency apologized and acknowledged that Complainant’s
personally identifiable medical information was improperly compromised.

2 This office promulgates the ship’s schedule and is the interfacing office between NAVO and
Horizon Lines.

3 CTG 73.7 exercises Administrative Control of the Special Mission ships while they are in the
Seventh Fleet. When the ships are in port they also exercise operational control of the ships.

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On March 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on disability (Cardiac Dysrhythmia (AFIB)) when, the Captain (CPT) released
Complainant’s medical information via email to the wrong recipient.4

On January 26, 2011, the Agency dismissed the claim for untimely EEO Counselor contact.
Complainant appealed and, in Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120112022
(Nov. 23, 2011), the Commission affirmed the dismissal. Complainant filed a request for
reconsideration. The Commission granted Complainant’s request in Complainant v. Dep’t of the
Navy, EEOC Request No. 0520120198 (Sept. 22, 2015), determining that Complainant was not
aware of the regulatory deadlines for contacting an EEO Counselor. The Commission vacated the
previous decision, reversed the Agency’s dismissal, and remanded the matter for further
processing.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). On September 26, 2016, the AJ assigned to the matter conducted an Initial Conference.
Soon thereafter, on October 14, 2016, the Agency filed a Motion to Dismiss for Failure to State a
Claim. The Agency argued that Complainant’s complaint involved alleged violations of the
Privacy Act/Health Insurance Portability and Accountability Act (HIPAA) and was not properly
before the Commission. On February 21, 2017, the AJ granted the Agency’s motion and issued a
decision dismissing the complaint. Specifically, the AJ concluded that the Commission did not
have jurisdiction over Privacy Act/HIPAA and that Complainant did not assert a claim of violation
of any law enforced by the Commission. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to state a claim.

CONTENTIONS ON APPEAL

Complainant asserts that the AJ erred by: (1) failing to recognize that Complainant raised a
Rehabilitation Act claim; (2) failing to recognize that Complainant raised a retaliation claim; (3)
failing to recognize that Complainant raised a harassment claim; (4) denying Complainant a
hearing on the merits of his claims, especially before discovery finished; and (5) failing to
recognize and remedy the inadequate EEO investigation. Accordingly, Complainant requests that
the Commission reverse the final order and remand the matter for a hearing.

ANALYSIS AND FINDINGS

The AJ’s Dismissal – Improper Confidential Medical Disclosure

We agree with Complainant that the AJ erred in construing his claims solely as a Privacy Act or
HIPAA claim.5

4 Complainant also alleges that his medical documentation was intentionally disseminated to
numerous others who did not need to have such information.
5 5 U.S.C. § 552(g)(1) and 42 U.S.C. § 1320d, et. seq. and 45 C.F.R. § 164.502(a).
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The Rehabilitation Act is also implicated by the Agency’s alleged improper disclosure of
Complainant’s medical information. Specifically, 29 C.F.R. § 1630.14(c)(1) provides, in pertinent
part, that: “[i]nformation obtained... regarding the medical condition or history of any employee
shall . . . be treated as a confidential medical record, except that: (i) [s]upervisors and managers
may be informed regarding necessary restrictions on the work or duties of the employee and
necessary accommodation.” We note that this requirement applies to confidential medical
information obtained from “any employee,” and is not limited to individuals with disabilities. See
Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000); 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 her medical information was improperly disclosed,
which constitutes a per se violation of the Rehabilitation Act); see also Melani F. v. Dep't of
Veterans Affairs, EEOC Appeal No. 0120142156 (June 23, 2016) (coworkers accessing the
complainant's medical records where access was neither job-related nor consistent with business
necessity was a per se violation of the Rehabilitation Act); EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the ADA, No. 915.002, Q. 42 (revised
Oct. 17, 2002).

In addition, a fair reading of the record establishes that Complainant intended to raise a
Rehabilitation Act claim. Complainant checked “disability” as the basis for discrimination in his
formal EEO complaint. In addition, prior to the 2011 dismissal, the complaint was treated as a
Rehabilitation Act claim by all relevant parties involved in the processing of the complaint.
Throughout the EEO counseling and formal complaint process, Complainant consistently
maintained that his claim is based upon the “Persons with Disabilities Act.” In addition, the EEO’s
notice of accepted claim for investigation identified “physical disability” as the basis of
Complainant’s claims and gave Complainant seven days to correct any perceived mistake in the
framing of his claim. Complainant did not request a correction. Also, Complainant’s statements
in his EEO affidavit clearly show his belief that the Agency violated the Rehabilitation Act.

We agree with the AJ that the Commission does not have jurisdiction over the Privacy Act/HIPPA.
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. Accordingly, Complainant has set forth an actionable claim. We, therefore, conclude that
the AJ erred when she dismissed the complaint for failure to state a claim. See Pherigo v. U.S.
Postal Serv., EEOC Appeal No. 0120120630 (Mar. 30, 2012); Giselle L. v. U.S. Postal Serv.,
EEOC Appeal No. 0120160999 (Apr. 22, 2016); Salazar v. U.S. Postal Serv., EEOC Appeal No.
0120130031 (Feb. 22, 2013).

Reprisal Claim

While Complainant did not explicitly indicate reprisal as a basis of discrimination when he filed
his formal complaint, he did raise it in his statement that he submitted with the complaint and in
his 2011 appeal statement which occurred prior to the completion of the EEO investigation.
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Specifically, in his formal complaint, Complainant alleges that after he told SNR that he wanted
to file an EEO complaint regarding the release of his medical information, he was told that CPT
could do whatever he wanted to with his medical information. Complainant further alleged that
on May 26, 2009, he told SNR that he was going to pursue his EEO complaint and that on June 4,
2009, SNR informed him that he was being sent home early for medical exam for "damage
control." In addition, Complainant asserts there were continuing hostilities from SNR regarding
the discussion of his medical condition in public and open hostility beginning June 19, 2009 after
Complainant spoke to the NAVO Inspector General and was told to speak to an EEO counselor
when he returned to the United States.

Given these statements by Complainant, the EEO investigator should have obtained addition
information from him to determine if he wanted to amend his complaint by adding a claim of
reprisal. Pursuant to 29 C.F.R. § 1614.106(d), a complainant may amend a complaint at any time
prior to the conclusion of the investigation to include issues or claims like or related in the formal
complaint. See Complainant v. Dep't. of the Army, EEOC Appeal No. 0120142480 (Nov. 25,
2014); Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Webber v. Dep't.
of Health and Human Servs., EEOC Appeal No. 01900902 (Feb. 28, 1990)). On remand,
Complainant’s complaint should be amended to include his claim of reprisal and the investigative
record should be developed to include evidence relevant to this issue.

Inadequate Investigation

In addition to finding that the AJ erred in dismissing the complaint on jurisdictional grounds, we
also find that a decision without a hearing is not appropriate here because the investigative record
is not adequately developed to allow a reasonable fact finder to draw conclusions as to whether
discrimination occurred. Specifically, we note that the EEO investigative record does not contain
testimony from any of the alleged responsible management officials. While the investigative
report explains that an affidavit could not be obtained from CPT because he no longer worked at
Horizon Lines Inc. at the time of the EEO investigation, there is no explanation as to why the other
responsible management officials and witnesses (most notably SNR and NE) were not interviewed.
Moreover, even if every responsible management official is no longer available to provide
testimony, there surely are Agency employees who could provide valuable information based upon
Agency records and general knowledge of standard procedures relevant to this complaint. In
addition, according to the EEO investigator, the Agency failed to produce (unspecified) documents
that were requested from the Agency without explaining the failure. At minimum, we find that
the Agency should have produced: (1) job descriptions for each person who received
Complainant’s medical file to better determine whether they had a need to review Complainant’s
medical documentation; and (2) the documents contained in the medical file at issue herein to
determine whether the information disseminated contained confidential medical information.

Also, it appears that, Complainant has raised a harassment claim, in addition to the claim of per se
violation of the Rehabilitation Act. This was touched upon in Complainant’s affidavit, but not in
any meaningful way mainly because he was not asked directly about it.
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Also, as noted above, the EEO investigator failed to explore Complainant’s allegations of
retaliation. Accordingly, upon remand, the AJ shall oversee the development of the record to
ensure that it is adequately developed.

CONCLUSION

Therefore, after a careful review of the record, including Complainant’s arguments on appeal, the
Agency’s response, and arguments and evidence not specifically discussed in this decision, the
Commission VACATES the Agency’s final order and REMANDS the matter to the Agency for
further processing in accordance with this decision and the ORDER below.

ORDER

This complaint is remanded to the Hearings Unit of the Commission’s Raleigh Area Office for
continued processing. The Agency is directed to submit a copy of this decision and, if necessary,
a copy of the complaint file to the Hearings Unit of the Raleigh Area Office within fifteen (15)
calendar days of the date this decision is issued. The Agency shall provide written notification to
the Compliance Officer at the address set forth below that the complaint file has been transmitted
to the Hearings Unit.

Thereafter, the Administrative Judge shall process the remanded claims (including allegations of
improper medical disclosure, reprisal, and harassment) in accordance with 29 C.F.R. § 1614.109
and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
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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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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 (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

November 8, 2018
Date