0120073097
01-11-2011
Ronald E. Bennett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Ronald E. Bennett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120073097
Hearing No. 460-2007-00056X
Agency No. 1G-772-0018-06
DECISION
On July 2, 2007, Complainant filed an appeal from the Agency's June 4,
2007, final decision 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
(1) Whether the Agency properly dismissed Complainant's complaint on
the grounds that it failed to state a claim; (2) whether the Agency
violated the Rehabilitation Act when it released Complainant's medical
information to a private party in response to a state court subpoena;
and (3) whether the Agency properly found that Complainant failed to
provide sufficient evidence to establish that discrimination occurred.
BACKGROUND
The record reflects that Complainant was formerly employed as a
Maintenance Mechanic, MPE, PS-08, at the Agency's North Houston Processing
& Distribution Center in Houston, Texas. Complainant injured his back
while on duty in December 2001, and he sustained a sinus/respiratory
injury in March 2003. He was given multiple limited duty assignments
due to his restrictions until his physician ordered him to stop working
indefinitely in August 2004.
In February 2004, a subpoena was served upon the Agency requesting
Complainant's payroll and personnel information, including his medical
records, for a civil action initiated by Complainant against Union
Carbide Corporation in the Galveston County, Texas 405th District Court.
A Human Resources Associate responded to the subpoena by requesting copies
of Complainant's injury compensation records, Official Personnel Folder
(OPF), and payroll information and transmitting the files to the Team
Litigation Company. The information submitted included, in pertinent
part, correspondence between Complainant's physicians and the Agency
regarding his medical diagnosis and work restrictions, his Office of
Workers' Compensation Programs (OWCP) claim forms listing his alleged
injuries, and documentation regarding his limited duty job offers.
Complainant filed an EEO complaint, dated March 26, 2006, alleging that he
was discriminated against on the bases of disability (back, sinusitis),
age (46 years old at the time of the incident), and in reprisal for
prior protected EEO activity arising under the Rehabilitation Act when,
on February 7, 2006, he became aware that the Agency had turned over his
personal and medical records to Union Carbide without a signed release,
and he was not notified of the transaction.
In April 2006, the Agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) on the grounds that Complainant failed to state a claim.
Bennett v. U.S. Postal Serv., Agency No. 1G-772-0018-06 (Apr. 6, 2006).
The Agency found that Complainant failed to establish that he suffered
any measurable personal harm and that, because he had claimed that his
"privacy rights" were violated, the EEO process was not the proper forum
for his complaint. Id. On appeal, the Commission found that the Agency
improperly dismissed the complaint and remanded the matter to the Agency
for further processing in accordance with 29 C.F.R. � 1614.108. Bennett
v. U.S. Postal Serv., EEOC Appeal No. 01A63239 (Sept. 28, 2006).1
On remand, the Agency assigned the case to an investigator, and, at the
conclusion of the investigation, Complainant was provided with a copy
of the report of investigation and a notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. In May 2007,
the AJ issued an Order of Dismissal and returned the case to the Agency
for the issuance of a final agency decision.
On June 4, 2007, the Agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The Agency dismissed the complaint for failure
to state a claim, finding that the Agency was not required to obtain
Complainant's signature prior to complying with the subpoena, and the
Agency had a "mandated legal compulsion to comply with the subpoena served
upon it." The Agency noted that its policies and regulations citing
the Privacy Act allowed Union Carbide to request medical information
"with the authority of compulsory legal process such as subpoenas."
The Agency alternatively found that Complainant failed to establish a
prima facie case of discrimination and that he failed to establish that
the Agency's legitimate, nondiscriminatory reasons for submitting his
personnel information in response to the subpoena were a pretext for
discrimination.
CONTENTIONS ON APPEAL
On appeal, through his representative, Complainant argues that the Agency
improperly dismissed his complaint on the grounds that he failed to
state a claim. He requests that the Commission reverse the Agency's
decision and issue a finding of discrimination because the Agency
improperly released his confidential medical information in violation
of federal regulations. In response, the Agency urges the Commission
to affirm its final decision. The Agency argues that it was required
by legal compulsion to submit the documentation in question, the Human
Resources Associate was providing information within the scope of her
duties, and she was unaware of Complainant's prior EEO activity when she
processed the request. The Agency also argues that Complainant failed
to establish a prima facie case of discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
We first address the Agency's dismissal of the complaint. 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).
The Commission's previous decision in Bennett, EEOC Appeal No. 01A63239,
reversed the Agency's first dismissal for failure to state a claim and
remanded the complaint for an investigation. The Agency subsequently
conducted the investigation and again dismissed the complaint for
failure to state a claim. In dismissing the complaint, the Agency held
that Complainant's personnel information was released to comply with a
subpoena and Agency regulations. The Agency held that it was "required
by [l]egal compulsion" to respond to the subpoena, and it did not need
a written release from Complainant.
The only questions for an agency to consider in determining whether
a complaint states a claim are: (1) whether the complainant is an
aggrieved employee; and (2) whether the complainant alleges 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. Odoski v. Dep't
of Energy, EEOC Appeal No. 01901496 (Apr. 16, 1990). We find that
Complainant is an aggrieved employee and states a cognizable claim
under EEO Regulations. See Valle v. U.S. Postal Serv., EEOC Request
No. 05960585 (Sept. 5, 1997) (finding that improper agency disclosure
of medical information would constitute a per se violation of the
Rehabilitation Act, and no showing of harm beyond the violation would be
necessary to state a claim). Therefore, we find the Agency improperly
dismissed the complaint.
We next address the Agency's contention that no discrimination occurred.
Title I of the Americans with Disabilities Act of 1990 (ADA)2 requires
that all information obtained regarding the medical condition or
history of an applicant or employee must be maintained on separate
forms and in separate files and must be treated as confidential medical
records. 42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14.
These requirements also extend to medical information that an individual
voluntarily discloses to an employer. See EEOC Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees under
the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26,
2000) (Guidance I). The confidentiality obligation imposed on an employer
by the ADA remains regardless of whether an applicant is eventually hired
or the employment relationship ends. See ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations,
at 18 (October 10, 1995) (Guidance II). These requirements apply to
confidential medical information from any applicant or employee and are
not limited to individuals with disabilities. See Higgins v. Dep't
of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003); Hampton
v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000).
The ADA and its implementing regulations list the following limited
exceptions to the confidentiality requirement: supervisors and managers
may be informed regarding necessary restrictions on the work or duties of
the employee and necessary accommodations; first aid and safety personnel
may be informed, when appropriate, if the disability might require
emergency treatment; and government officials investigating compliance
with this part shall be provided relevant information on request.
42 U.S.C. �� 12112(d)(3)(B), (4)(C); 29 C.F.R. � 1630.14; Guidance I
at 4. The Commission has also interpreted the ADA to allow employers
to disclose medical information to state workers' compensation offices,
state second injury funds, workers' compensation insurance carriers, and
to health care professionals when seeking advice in making reasonable
accommodation determinations. Guidance I at 4 n.10. Additionally,
employers may use medical information for insurance purposes. Id.
Here, we find that the Agency improperly submitted Complainant's
confidential medical information to the Team Litigation Company in
response to the subpoena issued by the Galveston County 405th District
Court. Although not all medically-related information falls within
the confidentiality provision, "documentation or information concerning
an individual's diagnosis is without question medical information that
must be treated as confidential except in those circumstances described
in 29 C.F.R. Part 1630." Lampkins v. U.S. Postal Serv., EEOC Appeal
No. 0720080017 (Dec. 8, 2009) (citations omitted). As noted above, the
ADA only allows for the release of an applicant or employee's medical
information in limited circumstances. A request for an employee's medical
records pursuant to a discovery request in a civil action would not
fit into one of the exceptions to the ADA's confidentiality requirement.
Therefore, we find that the Agency's release of Complainant's confidential
medical information constituted a violation of the Rehabilitation Act.
See also Griffin v. Dep't of Homeland Sec., EEOC Appeal No. 0120073832
(May 15, 2009) (finding that the Agency violated the Rehabilitation Act
when management officials discussed Complainant's medical information
in a public chat forum); Higgins, EEOC Appeal No. 01A13571 (finding a
violation of the Rehabilitation Act when the Agency placed confidential
medical information from a physician documenting Complainant's diagnosis
in a non-medical work file).
On appeal, the Agency argues that the release of Complainant's medical
information was required by legal compulsion. However, although
the ADA allows an employer to comply with the requirements of another
federal statute or rule, even if that statute or rule conflicts with the
requirements of the ADA, 29 C.F.R. � 1630.15(e), it is not a valid defense
to argue that the Agency's actions were required by state law, unless
the challenged confidentiality breach falls within one of the exceptions
enumerated above or is otherwise permitted by the ADA. Moreover, the
Agency's own regulations indicate that circumstances exist where the
Agency's General Counsel may refuse to authorize the production of records
in response to a subpoena. See 39 C.F.R. � 265.12. We note that the
Privacy Act allows for disclosure of an individual's records "pursuant to
the order of a court of competent jurisdiction," 5 U.S.C. � 552a(b)(11),
but this exception does not apply in this case because the state court
subpoena, signed and issued by the Deputy Clerk, did not qualify as an
"order" for purposes of the Act. See also Doe v. DiGenova, 779 F.2d 74,
85 (D.C. Cir. 1985) (holding that subpoenas "do not qualify as 'order[s]
of a court of competent jurisdiction' under 5 U.S.C. � 552a(b)(11),
unless they are specifically approved by a court").
The Agency also argues on appeal that "[t]here were no provisions to
notify the Complainant" of the disclosure and that the Human Resources
Associate "was not aware of any regulations being violated and providing
this information was within the scope of her duties." However, the
lack of a statutory notice requirement and the fact that the Human
Resources Official was not aware that the Agency was precluded under
the Rehabilitation Act from providing Complainant's medical information
in response to a state court subpoena does not excuse the Agency from
liability for a violation. We note that, by filing a civil action,
Complainant was not prohibited from disclosing his own medical information
to persons beyond those to whom an employer can disclose such information.
Guidance II at 18. Consequently, Union Carbide was free to request the
medical information from Complainant.3
Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant
who establishes his claim of discrimination may receive, in addition to
equitable remedies, compensatory damages for past and future pecuniary
losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g.,
pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3). For an
employer with more than 500 employees, such as the Agency, the limit of
liability for future pecuniary and non-pecuniary damages is $300,000.
Id. The Commission, an agency, or an AJ may also award Complainant
reasonable attorney's fees and other costs incurred in the processing of
a complaint regarding allegations of discrimination in violation of the
Rehabilitation Act. 29 C.F.R. � 1614.501(e). The issues of compensatory
damages and attorney's fees are remanded to the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Agency's final
decision is REVERSED and REMANDED for the Agency to take corrective
action in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions:
(1) The Agency shall undertake a supplemental investigation to determine
Complainant's entitlement to compensatory damages. The Agency shall give
Complainant notice of his right to submit objective evidence (pursuant to
the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369
(Jan. 5, 1993)) and request objective evidence from Complainant in
support of his request for compensatory damages within forty-five (45)
calendar days of the date Complainant receives the Agency's notice.
No later than ninety (90) calendar days after the date that this decision
becomes final, the Agency shall issue a final Agency decision addressing
the issue of compensatory damages. The final decision shall contain
appeal rights to the Commission. The Agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
(2) Within thirty (30) calendar days of the date on which this decision
becomes final, the Agency shall provide EEO training regarding rights
and responsibilities under the Rehabilitation Act to all of the Agency
officials responsible for improperly releasing Complainant's confidential
medical information.
(3) The Agency shall consider taking disciplinary action against the
Agency officials found to have discriminated against Complainant.
The Commission does not consider training to constitute disciplinary
action. The Agency shall report its decision. If the Agency decides to
take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
(4) 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 (G0900)
The Agency is ordered to post at its North Houston Processing &
Distribution Center copies of the attached notice. Copies of the notice,
after being signed by the Agency's duly authorized representative, shall
be posted by the Agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he 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.
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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
January 11, 2011
Date
1 The Commission's records reflect that neither Complainant nor the
Agency filed a request for reconsideration.
2 The Rehabilitation Act was amended to provide that the standards used
to determine whether nonaffirmative action employment discrimination
has occurred shall be the standards applied under Title I of the ADA.
Valle, EEOC Request No. 05960585 (citations omitted).
3 Because the Commission finds that the agency violated the Rehabilitation
Act when an official improperly transmitted Complainant's confidential
medical information, we will not address Complainant's claim of
discrimination based on age or in reprisal for prior protected EEO
activity. A finding of discrimination based on age or in reprisal
for prior protected activity would not alter the remedies awarded
Complainant.
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0120073097
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120073097