Erick N., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 0520130125 Appeal No. 0720120004 Hearing No. 430-2010-00080X Agency No. P20090430 DENIAL The Agency timely requested reconsideration of the decision in Erick N. v. Department of Justice, EEOC Appeal No. 0720120004 (October 24, 2012). 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(c). In our previous decision we affirmed an EEOC Administrative Judge's (AJ) finding that the Agency violated the Rehabilitation Act when it placed Complainant's medical records in the Human Resources Department's adverse action files, which are not separate confidential medical files and are accessible by anyone in the Human Resources Department. We affirmed the AJ's award of $2,500 in compensatory damages, ordered the Agency to expunge all medical information concerning Complainant from non confidential medical files, ordered the Agency to take corrective, curative, or preventative action to ensure similar violations of the law will not occur, and ordered the Agency to provide training on medical confidentiality and post a notice of discrimination. In its request for reconsideration, the Agency raises the same arguments that it raised in the original appeal. The Agency continues to reference the same Commission decisions to support its argument that it did not per se violate the Rehabilitation Act, even though in our previous decision we addressed each of those cases and distinguished them from this case. The Agency has not presented any evidence that would establish that the Commission has made a clearly erroneous interpretation of material fact or law. The Agency also asserts in its request for reconsideration that the decision will have a substantial impact on the policies, practices, or operations of the Agency because it will require the Agency to create an entirely new document storage system. As we noted in our previous decision, the Rehabilitation Act states that any information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record ...." 29 C.F.R. § 1630.14(c)(1); 42 U.S.C. § 12112(d)(3)(B). This is a requirement of the Rehabilitation Act, and therefore the Agency should already maintain a document storage system that assures compliance with its provisions. There is no evidence that our previous decision will have a substantial impact on the policies, practices, or operations of the Agency. After reviewing 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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0720120004 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 Within one hundred and twenty (120) days of the date this decision becomes final, the Agency is ordered to take the following remedial action: 1. The Agency shall pay Complainant $2,500 in non-pecuniary compensatory damages; 2. To the extent the records are within the Agency's control, the Agency shall expunge all medical information concerning Complainant from non-medical files, including personnel and adverse action files; 3. The Agency shall take corrective, curative, or preventative action to ensure that similar violations of the law will not recur, see 29 C.F.R. § 1614.501(a)(2); 4. The Agency shall provide training on the medical confidentiality provisions of the Rehabilitation Act to the Warden, the HR manager, and the current Manager of Human Resources; and 5. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order." The Agency shall provide written notice of its compliance with the above Order and will send it to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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. POSTING ORDER (G0610) The Agency is ordered to post at its Butner, North Carolina, Federal Correctional Complex (FCC Butner) 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0610) 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 4/25/2014 __________________ Date 2 0520130125 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520130125