0120101294
07-22-2010
_________, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
_________, Complainant,
v.
Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration),
Agency.
Appeal No. 0120101294 Agency No. DOT-2010-23052-FAA-01
DECISION
Upon review, we find that the Agency's decision dated January 22, 2010,
dismissing Complainant's complaint for failure to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing
the complaint is AFFIRMED. BACKGROUND
In her complaint, dated January 2, 2010, Complainant alleged
discrimination based on race (African-American), sex (female), disability,
and in reprisal for prior EEO activity when on June 14, 2009, the Agency
attorney who was handling her prior EEO complaint and MSPB appeal sent a
letter to her church elder regarding her medical condition. Complaint
File (COM), at 66. Specifically, Complainant claimed that a member
of her church leadership and a national community civic organization
sent a letter to their congressman concerning Complainant's removal
within the Agency and EEO matters. Id. Complainant indicated that the
congressman, in response, sent a congressional inquiry to the Agency. Id.
Complainant further indicated that the Agency attorney, in response to
the congressional inquiry, sent his June 14, 2009 letter to Complainant's
church elder and to the national community civic organization disclosing
Complainant's medical information. Id. In its decision, the Agency
stated that the alleged action occurred after Complainant's employment
with the Agency despite the fact that Complainant's removal was still
pending with MSPB. Agency's Final Decision of January 22, 2010, at 2.
The Agency further stated that the alleged action, thus, did not affect
a term, condition, or privilege of Complainant's employment, and the
complaint failed to state a claim. Id.
ANALYSIS AND FINDINGS The Rehabilitation Act provides that information obtained regarding
the medical condition or history of any employee shall be treated as a
confidential medical record and there are only limited exceptions to this
regulation. 29 C.F.R. � 1630.14. Specifically, 29 C.F.R. �1630.14(c)(1)
provides, in pertinent part, that: "Information 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." By its terms, this
requirement applies to confidential medical information obtained from
"any employee," and is not limited to individuals with disabilities.
Hampton v. United States Postal Service, EEOC Appeal No. 01A00132
(April 13, 2000). Although not all medically-related information
falls within this provision, documentation or information of 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. See Id.; see also ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(October 10, 1995), at 22; EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities (March 25, 1997), at
17; EEOC Enforcement Guidance: Disability Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act
(July 27, 2000), at 4.
Initially, we note that on appeal, the Agency states that it does not
contest that Complainant is an employee with the Agency. Agency Brief
in Opposition to Notice of Appeal, n 1, at 4. Upon review, the record
does not support Complainant's contentions that the Agency unlawfully
disclosed confidential medical information. Specifically, in his June
14, 2009 letter, the Agency attorney at issue stated that he has empathy
for Complainant "because of her personal and mental health history."
The Agency attorney letter dated June 14, 2009, at 1. After a review of
the record, we do not find the foregoing statement concerns Complainant's
diagnosis nor constitutes medical information within the purview of the
Rehabilitation Act.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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), 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 (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 (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
7/22/10 _________________ Date
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0120101294
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013