Jeffrey J. Smith, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionMar 19, 2012
0120120539 (E.E.O.C. Mar. 19, 2012)

0120120539

03-19-2012

Jeffrey J. Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.




Jeffrey J. Smith,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120120539

Agency No. 1E501022309

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated October 11, 2011, dismissing his complaint of

unlawful 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 Mailhandler at the Agency’s P&DC facility in Des Moines, Iowa.

On October 17, 2009, Complainant filed a formal complaint alleging that

the Agency subjected him to discrimination on the basis of disability. On

October 112, 2011, the Agency issued a final decision dismissing the

complaint. Therein, the Agency framed Complainant’s claim in the

following fashion:

Complainant alleges discrimination based on disability when he allegedly

became aware on July 23, 2009,that information about [his] entitlement

to protection under the Family and Medical Leave Act was included in

the Postal Service’s Enterprise Resource Management (eRMS) database.1

The Agency dismissed Complainant’s formal complaint on the grounds

of untimely EEO Counselor contact. The Agency noted that Complainant

initiated EEO Counselor contact on July 24, 2009.

The Agency noted that the record contains a Declaration from the Program

Manager of Resource Management (PM1). The Agency asserted that PM1

states that at least as of December 11, 2008, access to the eRMS system

was strictly controlled. The Agency stated:

Even assuming, for the sake or argument only, that a possible violation

involving disclosure of confidential medical information from eRMS could

have occurred, such a theoretical violation could only have occurred

prior to December 11, 2008. Your July 24 2009 request for pre-complaint

counseling would, therefore, be untimely.

The Agency further reasoned that Complainant should have known of the

alleged breach in confidentiality more than 45 days before his August

1, 2009 contact date because of a pending class action involving Agency

Mailhandlers, Verkade v. U.S Postal Serv., Agency Case No. 1J-494-0018-07.

Specifically, the Agency stated that:

[t]he Verkade class was settled on March 31, 2009 and the local settlement

with the Mailhandlers in Des Moines were completed on May 11, 2009.

The Mailhandlers union distributed information to its membership prior

to the date to advise them of the existence of the Verkade case and

the issue raised. It stands to reason that if a significant segment of

the workforce in Des Moines acted diligently and filed in a reasonably

timely manner concerning the alleged problem, there is no excuse for

the remainder of the workforce or other unions not to have acted in a

similarly diligent fashion.

The Agency also dismissed Complainant’s formal complaint on the

alternate grounds of failure to state a claim. The Agency asserted that

the information listed in eRMS is “vague and generic” and cannot

be considered confidential medical information. The Agency asserted

that to the extent Complainant is alleging that this matter violates

the FMLA this is a collateral attack on the FMLA process and Complainant

should raise his concerns to the Department of Labor (DOL). Furthermore,

the Agency asserted that the Freedom of Information Act and Privacy Act

provide exclusive statutory frameworks for governing the disclosure and

access to information contained in federal records and that jurisdiction

lies with the district courts.

The instant appeal followed.

CONTENTIONS ON APPEAL

In his appeal, Complainant states he was unaware of the problem until he

was informed about the matter in July 2009. He asserts that even though

he is a mailhandler, the union never told him about the class action.

The Agency requests that the Commission affirm its decision dismissing

the complaint.

ANALYSIS AND FINDINGS

Dismissal for Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Dep’t of the Navy,

EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Agency improperly dismissed Complainant’s formal complaint on

the grounds of untimely EEO Counselor contact. Complainant in his

pre-complaint form and the EEO Counselor’s Report lists 2006-2008 as

the dates of the incidents, and states he learned about the matter

on July 24, 2009. Complainant contacted the EEO counselor that same day

which is within 45 days of learning of the alleged incidents.

We are not persuaded by the Agency’s assertion that Complainant

was aware of the alleged violation (improper disclosure of medical

information) prior to 45 days from his initial EEO contact. The Agency

asserts that Complainant lists “2006-2008” as the dates of the

alleged violation and thus Complainant’s July 24, 2009 contact

is untimely. However, we disagree. Complainant is alleging that the

improper disclosure of his medical information occurred between 2006-2008,

but that he was not aware of the alleged violation until around July

24, 2009. Complainant on appeal states he filed his EEO Complainant

after being informed of the matter.

We are also not persuaded by the Agency’s assertion that since

there was a class action case with Mailhandlers on the same issue that

Complainant, should have suspected a violation with respect to her own

medical information. Complainant asserts he did not know about the class

actions and did not receive any notice of such. Where as here, there

is an issue of timeliness, “[a]n agency always bears the burden of

obtaining sufficient information to support a reasoned determination as

to timeliness.” See Guy v. Dep’t of Energy, EEOC Request No. 05930703

(Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request

No. 05920506 (Aug. 25, 1992). We find that the Agency has not met

this burden.

Finally, we find that the Agency’s arguments that no violation could

have occurred after December 11, 2008, because the Agency took steps to

control access to eRMS goes to the merits of Complainant’s complaint.

Moreover, as set forth above, Complainant is alleging that he was not

aware of a disclosure of his medical information until July 2009, and

timely contacted an EEO Counselor on July 24, 2009.

Dismissal for Failure to State a Claim

The Commission finds that the Agency improperly dismissed Complainant’s

formal complaint for failure to state a claim. The only questions

for an agency to consider in determining whether a complaint states a

claim are: (1) whether complainant is an aggrieved employee; and (2)

whether complainant raises 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. See Odoski v. Dep’t of Energy, EEOC Appeal

No. 01901496 (April 16, 1990).

In the instant matter, Complainant is alleging that the Agency improperly

disclosed confidential medical information. Generally, medical information

must be kept confidential.2 See EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship Under the American with Disabilities Act

(“Guidance”), Notice No. 915.002 (rev. Oct 17, 2002). Thus, we find

that Complainant is alleging a per se violation of the Rehabilitation Act.

See 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 that her medical information was improperly

disclosed which constitutes a per se violation of the Rehabilitation Act).

The Agency’s assertions that the medical information at issue does not

constitute confidential medical information under the Rehabilitation Act

goes to the merits of Complainant’s complaint and is not relevant to the

procedural issue of whether Complainant has set forth an actionable claim.

See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July

19, 1996).

The Agency also improperly dismissed Complainant’s formal complaint

finding that it was a collateral attack on other processes. We agree

with the Agency that the Commission does not have jurisdiction over

the Freedom of Information Act or Privacy Act. 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. Thus, Complainant has set forth

an actionable claim. Furthermore, while Complainant may be claiming

that the alleged improper disclosure involved some medical information

related to an FMLA condition, we find that the crux of Complainant’s

complaint is that the Agency violated the Rehabilitation Act (not the

FMLA) when it improperly disclosed confidential medical information.

CONCLUSION

Accordingly, we REVERSE the Agency’s final decision dismissing

Complainant’s formal complaint and we REMAND this matter to the Agency

(defined herein, as an alleged violation of the Rehabilitation Act by

unlawfully disclosing Complainant’s confidential medical information)

in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance

with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the

Complainant that it has received the remanded claims within thirty (30)

calendar days of the date this decision becomes final. The Agency shall

issue to Complainant a copy of the investigative file and also shall

notify Complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the Complainant

requests a final decision without a hearing, the Agency shall issue

a final decision within sixty (60) days of receipt of Complainant’s

request.

A copy of the Agency’s letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 19, 2012

__________________

Date

1 The Agency noted that Complainant’s complaint was previously held

in abeyance because it was part of a pending class complaint, Pevoteaux

v. U.S. Postal Serv., Agency Case No. 1E-502-0054-09. The Agency further

noted that an EEOC Administrative Judge (AJ) issued a decision finding

that the matter did not satisfy the prerequisites for class certification

and that the Agency implemented the AJ’s decision.

2 The limited exceptions to the ADA confidentiality requirements are:

(1) supervisors and managers may be told about necessary restrictions on

the work or duties of the employee and about necessary accommodations;

2) first aid and safety personnel may be told if the disability might

require emergency treatment; 3) government officials investigating

compliance with the ADA must be given relevant information on request.

See EEOC Enforcement Guidance on Reasonable Accommodation and Undue

Hardship Under the American with Disabilities Act (“Guidance”),

Notice No. 915.002 (rev. Oct 17, 2002), fn 111.

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0120120539

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120120539