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

Equal Employment Opportunity Commission

Jan 30, 2013

0120114309 (E.E.O.C. Jan. 30, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120114309

Agency No. 4E-500-0091-09

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated
September 8, 2011, dismissing her 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. For the following reasons, the Commission REVERSES the Agency’s
final decision and REMANDS this complaint to the Agency.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales and Service
Associate at post office facilities in and around Des Moines, Iowa. On October 23, 2009,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the basis of disability. The Agency framed Complainant's claim in the following fashion:

Complainant alleges discrimination based on disability when she allegedly became
aware in (or about) July 17, 2009, that information about [her] entitlement to protection
under the Family and Medical Leave Act was included in the Postal Service's
Enterprise Resource Management (eRMS) database.1

1 Complainant's complaint had been 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. When an
EEOC Administrative Judge issued a decision finding that the matter did not satisfy the
prerequisites for class certification, the Agency resumed processing of this complaint.
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In its decision, the Agency dismissed Complainant's complaint for untimely EEO Counselor
contact. The Agency noted that Complainant initiated EEO Counselor contact on July 29,
2009. The Agency stated that “[i]n response to the Agency's June 2011 letter requesting
specific information concerning your claim, you adopted the union's suggested response and
indicated that the date of incident was ‘2006-2008.’" The Agency determined that this
admission constitutes Complainant’s acknowledgment that she was aware of the problem more
than 45 days prior to the date on which she sought pre-complaint counseling, making her July
29, 2009 request for pre-complaint counseling singularly untimely.

The Agency also reasoned that Complainant should have known of the alleged breach in
confidentiality more than 45 days before her July 28, 2009 contact date because of a pending
class action, 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 Mail-handlers in Des Moines was 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 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 her 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.

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
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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 she 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 she 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.

We find that the Agency improperly dismissed Complainant's complaint for untimely EEO
Counselor contact. Complainant lists the date of discrimination in her complaint as July 17,
2009. In addition, the EEO Dispute Resolution Specialist’s Inquiry Report states that
Complainant was not aware of the discrimination until July 17, 2009. We are not persuaded
by the Agency's assertion that Complainant was aware of the alleged violation (improper
disclosure of medical information) more than 45-days prior to her initial EEO contact. We
find that Complainant should not have reasonably suspected discrimination until July 17, 2009.

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, a Sales and Service Associate, should
have suspected a violation with respect to her own medical information. 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. Therefore, we find that Complainant timely contacted an EEO Counselor. See
Beer v. United States Postal Serv., EEOC Appeal No. 0120120029 (November 15, 2012).

Dismissal for Failure to State a Claim

The Commission also finds that the Agency improperly dismissed Complainant's 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.

In the instant matter, Complainant is alleging that the Agency improperly disclosed confidential
medical information. Generally, medical information must be kept confidential. 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 Beer,
EEOC Appeal No. 0120120029. 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. Id.
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The Agency also improperly dismissed Complainant's 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. We find that the crux of
Complainant's complaint is that the Agency improperly disclosed confidential medical
information in violation of the Rehabilitation Act. Thus, Complainant has set forth an
actionable claim. Id. 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

We REVERSE the Agency's final decision and REMAND the complaint to the Agency to
investigate whether it unlawfully disclosed Complainant's confidential medical information in
violation of the Rehabilitation Act in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim 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.
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§ 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
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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

January 30, 2013
Date