0120150377
02-09-2017
Jamey M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jamey M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120150377
Agency No. 4F-900-0176-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2012, dismissing his 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant had been approved for a disability retirement from the Agency on August 24, 2011 which resulted in his retirement on September 2, 2011.
On May 7, 2012, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, on August 16, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, on May 1, 2012, the Postal Service Attorney (Attorney) stated aloud his medical condition in the presence of his representative (Representative). Complainant asserted that the Attorney yelled it over and over again and that now Complainant's confidential medical information is part of the public record for the world to view. He also asserted that Complainant would never return to work.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant had not shown that he has suffered any harm from the alleged event. Further, Complainant was no longer an employee of the Agency. As such, the Agency found that the matter should be dismissed for failure to state a claim. The Agency also indicated that Complainant alleged a claim of violation of HIPPA Privacy Rule which is not within the purview of EEO law.
In addition, the Agency asserted that the matter should also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency indicated that event occurred during a deposition in June 2005. As such, the Agency determined that Complainant's contact in May 2012, was well beyond 45 calendar days from the alleged event. Accordingly, the Agency determined that the matter should also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant appealed. On appeal, Complainant indicated that during a proceeding, the Attorney began humiliating him by disclosing his medical condition. He asserted that the Attorney yelled the medical information in front of the Representative who had not previously been made aware of his medical condition. In addition, Complainant spoke to the court reporter who informed him that the disclosure was now part of the written record for the proceeding and can be viewed by others. Complainant asserted that he was forced to retire based on the disclosure. As such, Complainant argued that he has been harmed. Further, Complainant summarily stated that he filed his complaint in a timely manner. As such, Complainant requested that the Commission reverse the Agency's dismissal. In support of his appeal, Complainant included a letter he sent to the Merit Systems Protection Board (MSPB) Administrative Judge (AJ) dated July 11, 2009. In the letter, Complainant complained that the Attorney exposed his confidential medical information during a deposition. He also noted that the Representative was in the room and was not aware of his medical condition. Complainant also provided additional letters from September 2009, indicating his concern that the Attorney improperly disclosed his confidential medical information.
The Agency asked that the Commission affirm it dismissal decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
We note that the matter raised by Complainant in his formal complaint is a claim that, on the bases of disability and reprisal, he was subjected to unlawful disclosure of his confidential medical information that was disclosed by the Attorney in front of the Representative. Complainant did not clearly identify the date of the alleged discrimination.
On his formal complaint, Complainant stated that the event was "filed" on May 1, 2012. In his pre-complaint form, Complainant asserted that he was informed that the "Federal Attorney Consultation" would not handle his claim against the Attorney when his medical information was made public. Complainant also argued on appeal that he was forced to retire based on the Attorney's disclosure. As noted above, Complainant retired in September 2011. Based on Complainant's documents provided on appeal, we find that Complainant has alleged discrimination based on a disclosure which occurred during a deposition taken pursuant to his MSPB appeal in June 2009. Based on the Complainant's documents, he attempted to raise his concerns about the Attorney's actions with the MSPB AJ, the California State Bar, and various offices within the Agency. Subsequent to these attempts, in May 2012, Complainant contacted the EEO Office alleging discrimination. Therefore, we determine that Complainant waited nearly three years to raise his claim with the EEO Counselor. Complainant has not provided justification for extending the time frame. As such, we conclude that the Agency's dismissal of the matter was appropriate.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
February 9, 2017
__________________
Date
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.
2 We note that the Agency asserted that Complainant failed to timely file his appeal. We note that Complainant provided the Commission with receipts showing that he had filed an appeal by mail on October 9, 2012. As such, we find that Complainant's appeal was filed within 30 calendar days from receipt of the Agency's final decision.
3 Because the FAD is affirmed on the above grounds, we need not address the other reasons therein for dismissal.
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