Roy F.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120172205 (E.E.O.C. Nov. 8, 2018) Copy Citation 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. 0120172205 2 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. 0120172205 3 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). 0120172205 4 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. 0120172205 5 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. 0120172205 6 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. 0120172205 7 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. 0120172205 8 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 Copy with citationCopy as parenthetical citation