0520100323
07-08-2010
Anil N. Parikh, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Anil N. Parikh,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520100323
Appeal No. 0120100004
Agency No. 200J-0537-2008100900
DENIAL
Complainant timely requested reconsideration of the decision in Anil
N. Parikh v. Department of Veterans Affairs, EEOC Appeal No. 0120100004
(March 19, 2010). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Physician (VM-0602-lO-Chief) at the Agency's Jesse Brown VA
Medical Center in Chicago, Illinois. On at least four occasions between
June 2005 and March 2007, Complainant disclosed patient information,
including last names, partial social security numbers, and medical
histories, to the Agency's Office of Inspector General, members of
Congress on the Agency's Oversight Committee, other Agency officials,
the Director of the Residency program at the University of Illinois,
the Complaint Officer of the Accreditation Council for Graduate Medical
Education, and his personal attorney. The Agency issued a letter
removing Complainant from his position, effective October 19, 2007,
for the "unauthorized release and disclosure of private and protected
information" in violation of VA regulations and the Health Insurance
Portability and Accountability Act of 1996 (HIPAA).
On March 18, 2008, Complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Asian), national
origin (Indian-American), religion (Hindu), color (brown), age (55),
and reprisal (prior EEO activity) when he was removed from his position
of Staff Physician, effective October 19, 2007. Complainant asserted, in
defense of his actions, that his disclosures of patient information are
protected as whistleblower activity 5 U.S.C. � 2302(b)(8) and permitted
by HIPAA under 45 C.F.R. �� 164.502(j), 164.512(d), and 164.512(j).
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
either a hearing before an EEOC Administrative Judge (AJ) or a final
Agency decision (FAD). Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, the Agency issued a
final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that Complainant failed to prove that he was subjected to discrimination
as alleged. The Agency found that management articulated a legitimate,
nondiscriminatory reason for its action; namely, Complainant was removed
due to his multiple disclosures of confidential patient information
to individuals unauthorized to receive such information. Further, the
Agency found that Complainant failed to demonstrate pretext.
In the previous decision, the Commission found that the Agency articulated
a legitimate, nondiscriminatory reason for its action. The Commission
further found that Complainant failed to raise an argument or produce
evidence to show that the Agency's explanations were a pretext for
discrimination.
In his request for reconsideration, Complainant, through his attorney,
indicated that the limited disclosure of health information was
permissible for whistle-blowing purposes. Also it is Complainant's
contention that management never considered his previous proposed
60-day suspension when deciding whether to remove him. Next, Complainant
indicated that the fact the Agency did not consult with one of its HIPPA
experts before removing him was evidence of pretext. Lastly, Complainant
contended that a HIPPA expert acknowledged that some of the disclosures
were protected under HIPPA.
ANALYSIS
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. Assuming that Complainant's contentions are true, they do
not provide evidence that his removal was based on discriminatory animus
towards any of his protected classes.
CONCLUSION
The decision in EEOC Appeal No. 0120100004 remains the Commission's
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____7/8/10______________
Date
2
0520100311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100323