0520090344
05-05-2009
Cynthia Council, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Cynthia Council,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Request No. 0520090344
Appeal No. 0520090334
Agency No. P20080564
DENIAL
The agency timely requested reconsideration of the decision in Cynthia
Council v. Department of Justice, EEOC Appeal No. 0520090334 (March
4, 2009). 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).
Believing that she was subjected to discrimination based on her disability
and in reprisal for prior protected activity, complainant filed a formal
EEO complaint. Therein, complainant claimed that on June 6, 2008,
she learned that medical information concerning her disability had been
placed in her time and attendance record.
The agency dismissed the complaint for failure to state a claim.
The agency determined that that the doctor's note containing the medical
information was immediately removed and redacted once management learned
of complainant's concerns. According to the agency, complainant did
not establish that she suffered a personal loss or harm to a term,
condition or privilege of her employment.
On appeal, complainant argued that the agency violated the Rehabilitation
Act when confidential medical information was placed in her Time and
Attendance Report, where various members of the staff had access to
the documents without a need to know of the information. Further,
complainant disputed the agency's assertion that the documents were
promptly removed.
In our prior decision, we found that the agency erred in dismissing the
complaint for failure to state a claim. See Cynthia Council v. Department
of Justice, EEOC Appeal No. 0120090865 (March 4, 2009). While the agency
argued that the medical record at issue, supporting a leave request,
was not subjected to the protections provided by 29 C.F.R. � 1630.14,
the Commission found that "the agency's duty to keep medical records
confidential applies to all medical records, regardless of how they are
obtained or for what purpose." See id. With respect to the agency's
assertions that the document was removed and that no unauthorized
employees saw the medical information, the Commission stated that such
arguments inappropriately addressed the merits of the case. See id.
The matter was remanded to the agency for further processing.
In its request for reconsideration, the agency argues that reliance on
regulation 29 C.F.R. � 1630.14 is misplaced. The agency specifically
argues that the regulation only applies to medical information obtained
by the agency for three specific purposes: an entrance examination, a
job-related medical examination, or a voluntary medical examination that
is part of an employee health program. The agency argues that three
circuits have recognized that where an employee voluntarily submits
medical information to her employer, the Rehabilitation Act and its
regulations do not require confidentiality.
In her response, complainant argues that the Commission's prior decision
properly interpreted the Rehabilitation Act. Additionally, complainant
believes that the agency has not established that the decision will have
a substantial impact on the policies of the agency, and that only when
a finding that the actions taken were discriminatory would the agency's
policies possibly be impacted. The complainant reiterates that the sole
focus of the instant matter at this time is whether or not the case
states a claim.
EEOC Regulation 29 C.F.R. 1630.14(b) provides for the confidentiality
of medical records, in pertinent part as follows:
Information obtained ... regarding the medical condition or history
of any employee shall... be treated as a confidential medical record,
except that: (i) Supervisors and managers may be informed regarding
necessary restriction on the work or duties of the employee and necessary
accommodations; (ii) first aid and safety personnel may be informed,
when appropriate, if the disability might require emergency treatment;
and (iii) government officials investigating compliance with this part
shall be provided relevant information on request.
If the agency discloses medical information pertaining to complainant
in a manner that did not conform with this regulation, then its act of
dissemination would constitute a violation of the Rehabilitation Act.
See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132
(April 13, 2000). Further, the agency erroneously concluded that
complainant was not aggrieved because she was not harmed, as there is
not a requirement showing harm beyond the violation. See id.
Therefore, 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. The decision in EEOC Appeal No. 0120090865 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K1208)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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
May 5, 2009
__________________
Date
2
0520090344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520090344