0120082861
09-10-2008
Jenard A. Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jenard A. Gibson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082861
Agency No. 1H303002108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 15, 2008, dismissing his complaint of unlawful
employment discrimination alleging a violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that he was subjected to discrimination on the basis
of disability1 when management disclosed his medical information on
the work room floor. The agency dismissed the complaint, pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. In its dismissal
decision, the agency argued that even if the events occurred as alleged by
complainant, a violation of the Privacy Act cannot be litigated through
the EEO complaint process. The instant appeal followed.
While the agency asserts that only the Privacy Act is implicated by
the alleged improper medical disclosure, the Commission's regulations
implementing the Rehabilitation Act also provide for the confidentiality
of medical records. 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. See
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 Hampton, supra; 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 �15. Therefore,
we find that complainant has alleged a viable claim of unlawful medical
disclosure which must be investigated before a decision can be made on
the merits of that claim.
Accordingly, the agency's dismissal is REVERSED and the matter is REMANDED
to the agency for further processing in accordance with the following
Order.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108 et seq. 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 (K0408)
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 19848,
Washington, D.C. 20036. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 10, 2008
__________________
Date
1 In its final decision, the agency asserts complainant was alleging
unlawful retaliation in violation of Title VII of the Civil Rights Act of
1964. However, a fair reading of the "EEO Dispute Resolution Specialist's
(DRS) Inquiry Report" (EEO counseling report) in this matter clearly
indicates complainant was alleging a violation of the Rehabilitation Act.
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0120082861
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082861