Richard Higgins v. Department of the Air Force 01A13571 May 27, 2003 . Richard Higgins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency. Appeal No. 01A13571 Agency No. 6W0B99009 Hearing No. 320-99-8440X DECISION INTRODUCTION Complainant filed a timely appeal with this Commission from a final agency decision (FAD) concerning his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. For the reasons that follow, the Commission REVERSES the agency's final decision. ISSUE The issue on appeal is whether complainant has established that the agency discriminated against him based on disability (work-related stress) when his former supervisor allegedly attempted to bias his new supervisor against him by using derogatory information, including privileged medical information. BACKGROUND During the period in question, complainant was a WS-10 Maintenance Mechanic at a Colorado facility of the agency. In a letter dated April 3, 1998, complainant's physician (physician) recommended that complainant take an indefinite medical leave of absence for work-related stress. The physician later clarified his diagnosis, stating: Work[-]related stress that has resulted in the development of two psychological diagnosis, increased aggression and hostility and fantasies of harming others. While [complainant's] mental status shows no signs of a thought disorder or delusional state it does present with depression, anxiety, and an increase [in] alcohol and tobacco in an attempt to self medicate. . . . Full recovery will most likely involve a change of employment location. Subsequently, in a letter dated May 29, 1998, the physician released complainant to return to work. Specifically, the physician stated “I had asked that [complainant] take a temporary leave of absence due to work[-]related stress. He is now doing well enough that I am asking that he be allowed to return to work as of June 1, 1998. . . . with no restrictions.” Complainant's supervisor (S1) placed the letter of May 29 in a work folder he maintained on complainant. Complainant alleged that S1 contributed to his work-related stress, so the agency detailed complainant, upon his return to work, to a different unit. After working several months in said unit, complainant was permanently transferred to the unit. Complainant's new supervisor (S2) requested complainant's work folder from S1. S1 personally delivered complainant's work folder to S2, at which time S2 and complainant discovered that it contained the physician's May 29 letter. Believing he was a victim of discrimination, complainant sought EEO counseling and, subsequently, filed a complaint alleging that the agency discriminated against him based on disability (work-related stress) when S1 met with S2 and attempted to improperly bias S2 against complainant with derogatory information, including privileged medical information<1>. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, finding no discrimination. Specifically, the AJ concluded that complainant was not an individual with a disability and that the agency did not violate the record-keeping provision of the Rehabilitation Act because the May 29 letter was in complainant's work folder for a legitimate purpose, i.e., to show that complainant could work without restriction. The agency issued a FAD fully implementing the AJ's finding of no unlawful employment discrimination based on disability. This appeal followed. ANALYSIS Typically, one bringing a claim of disability discrimination must first establish that he is a member of the class of persons protected by the Rehabilitation Act, i.e., a qualified individual with a disability. However, the Rehabilitation Act does not limit the prohibitions against improper disclosure of confidential medical information to individuals with disabilities. See 29 C.F.R. § 1630.14. In this case, it is undisputed that S1 gave S2 complainant's work folder, which contained a May 29 letter from complainant's physician referring to “work-related stress.” Complainant alleged that the presence of medical documentation in his work folder is a violation of the Rehabilitation Act. Federal regulation provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and maintained on separate forms and in a separate file. Id. There are limited exceptions to this regulation, which include allowing a supervisor or manager to be informed of the necessary restrictions and/or accommodations of an employee. Id. Under the facts of the instant case, we find that the presence of the May 29 physician's letter in complainant's work folder is a violation of the Rehabilitation Act in that it documented complainant's diagnosis, work-related stress, which is confidential medical information. Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, EEOC No. 915.002 n.26 (October 10, 1995). While a reference to work-related stress may not in some contexts constitute medical information, the term is used in the instant case in a physician's letter and to substantiate complainant's need to use leave as a result of a condition. In addition, we find that the AJ erred as there was no demonstrated need for S2 to be made aware of complainant's diagnosis or prior medically-related leave of absence. The May 29 letter did not impose any work restrictions. Moreover, if the physician's letter had set forth any continuing work restrictions for complainant, the letter and the information it contained could have been disclosed to S2, as complainant's new supervisor, see 29 C.F.R. § 1630.14(c)(1)(i), but S1 would not at any time have been permitted to maintain the letter in a non-medical file, as occurred here. CONCLUSION After a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we REVERSE the agency's finding of no discrimination based on disability.<2> ORDER (1) The agency is ordered to remove all documentation containing medical information from complainant's work folder within 30 days of the date this decision becomes final. (2) The agency shall pay complainant's reasonable attorney's fees and costs, if applicable, in accordance with the paragraph below entitled, “Attorney Fees.” (3) The agency shall post a notice of the finding of discrimination in accordance with the paragraph below entitled, “Posting Order.” (4) The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's actions in accordance with this Order. POSTING ORDER (G0900) The agency is ordered to post at its United States Air Force, Colorado facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) 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 (M0701) 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 (R0900) 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 (Z1199) 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: ______________________________ Frances M. Hart Executive Officer Executive Secretariat May 27, 2003 __________________ Date 1We note that S2 stated, in an affidavit, that S1 also informed him that he contested a claim that complainant filed with the Office of Workers' Compensation Programs. 2We note that we reviewed complainant's request for relief and find that the relief requested is not appropriate in this case.