Luis H.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

May 31, 2019

EEOC Appeal No. 2019002564 (E.E.O.C. May. 31, 2019)

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

Luis H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 2019002564

Agency No. 4C-190-0006-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated February 28, 2019, dismissing a formal
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.

BACKGROUND

During the period at issue, Complainant worked as a Carrier at the Agency’s Frankfort Post
Office in Philadelphia, Pennsylvania.

On February 9, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected him to discrimination based on disability when:

1. on an unspecified date, management shared his medical information as part of a co-
worker’s controversion case; and

2. on November 1, 2018, management disclosed his medical information at a District
Reasonable Accommodation Committee (DRAC) meeting.

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.
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On February 28, 2019, the Agency issued the instant final decision. The Agency dismissed
claim 1 for stating the same claim which was raised in his informal EEO complaint, pursuant to
29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that Complainant raised the same
issue previously in an informal complaint identified as Agency Case No. 4C-190-0037-18, which
was closed after Complainant withdrew his informal complaint.

The Agency dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1), finding that Complainant was not aggrieved.

The instant appeal followed.

ANALYSIS AND FINDINGS

Claim 1 – Same claim

The Commission has found that where a complainant “knowingly and voluntarily withdrew his
complaint … the Commission considers the matter to have been finally abandoned.” See Tellez
v. Dep’t of Transp. EEOC Request No. 05930805 (Feb. 25, 1994). The Commission has held
that a complainant may not request reinstatement of an informal complaint, with the exception of
a complaint withdrawn pursuant to a settlement agreement, unless there is a showing of coercion.
Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 1995). In addition, the
dismissal of a complaint is improper if the Agency’s action is misleading or misinforming the
complainant resulted in the dismissal. Perry v. U.S. Postal Serv., EEOC Appeal No. 01A45685
(Oct. 17, 2005).

Here, Complainant had previously raised the issue of management sharing his medical
information as part of a co-worker’s controversion case in an informal complaint (Agency Case
No. 4C-190-0037-18), which he voluntarily withdrew on May 7, 2018. Specifically, we note
that in the subject informal complaint, Complainant claimed that he was discriminated against on
the basis of disability when on February 21, 2018, management placed his medical information
in with a co-worker’s paperwork to controvert co-worker’s case, and that his information was
shared with multiple parties. There is nothing in the record reflecting that the Agency misled or
misinformed Complainant on this issue. Therefore, the Agency properly dismissed claim 1.

Claim 2 – Failure to state a claim

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency
shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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Here, the Agency correctly determined that Complainant has not alleged a personal loss or harm
regarding a term, condition or privilege of his employment. A fair reading of claim 2 is that it
relates to purported actions by management disclosing Complainant’s medical information
during a Disability Reasonable Accommodation Committee (DRAC) on November 1, 2018.
Complainant claimed that management violated Health Insurance Portability and Accountability
Act (HIPPA) concerning his case. The Agency argued that the reason for a DRAC meeting was
to ascertain if Complainant can be accommodated per his medical restrictions.

Finally, to the extent that Complainant is claiming a violation of the HIPPA law, the
Commission has previously determined that matters concerning the HIPAA, and the Privacy Act,
are not within the regulations enforced by the Commission. See Grove v. U.S. Postal Service,
EEOC Appeal No. 0120110456 (January 5, 2012); Price v. U.S. Postal Service, EEOC Appeal
No. 0120111033 (December 8, 2011); Scott v. U.S. Postal Service, EEOC Appeal No.
0120101539 (August 13, 2010); Cromer v. U.S. Postal Service, EEOC Appeal No. 0120083518
(April 22, 2010). The Department of Health and Human Services’ Office of Civil Rights
enforces HIPAA, making the EEO complaint process the improper forum to raise a HIPPA
violation. Lee v. U.S. Postal Service, EEOC Request No. 0520110481 (November 4, 2011).

CONCLUSION

The Agency’s final decision to dismiss the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in
digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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

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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

May 31, 2019
Date