U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenny W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140073 Hearing No. 520-2012-00234X Agency No. 200H-0561-2011103531 DECISION Complainant filed a timely appeal from the Agency's final decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging 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 For the following reasons, the Agency's FAD, which fully implemented an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision on summary judgment finding that Complainant was not subjected to disability or reprisal discrimination, is VACATED. The complaint is REMANDED for a hearing. ISSUES PRESENTED 1. Did the Agency violate the Rehabilitation Act when an employee accessed Complainant's medical records without authorization?3 2. Did the AJ properly issue a decision on summary judgment? BACKGROUND From September 2009 to March 2010, prior to the initiation of this complaint, Complainant volunteered in the Substance Use Disorders Clinic at the Health Care System in Lyons, New Jersey (VANJHCS). AJ Decision, p. 2. Beginning in June 2010 Complainant volunteered in the Agency's Compensated Work Therapy (CWT) program.4 Id. On June 28, 2010, Complainant filed a complaint under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) with the Privacy Office of VANJHCS.5 The alleged violator (Employee A) worked at the Substance Use Disorders Clinic. Agency's Motion for Summary Judgment, p. 10. Following his complaint, the Agency informed Complainant that Employee A had accessed Complainant's medical records inappropriately on June 1, 11, and 18, 2010. Privacy Fact Finding Document (August 2010), Complainant File, p. 73. The unauthorized access occurred when Employee A allegedly attempted to determine if Complainant had medical appointments in a particular building because he had been banned from entering the building. Privacy Fact Finding Document (August 2010), Complainant File, p. 74. The Agency found that Employee A's access to the medical records was a violation of the Privacy Act and HIPPA. Id. at p. 75. In March 2011, Complainant applied for position as a Vocational Rehabilitation Specialist at the new Homeless Veterans Supported Employment Program. AJ Decision, p. 2. The position was designed as a Schedule A position, and also required that applicants be veterans and either homeless, formerly homeless, or at risk of homelessness.6 Nine candidates were interviewed by a panel, which used 15 pre-determined questions for the interviews. The candidates interviewed were also rated on professionalism and employer recommendations. A member of the panel, Chief of the Vocational Rehabilitation Program, called the Chief, Substance Abuse Services (S1) for an employer recommendation, and was told by S1 that Complainant had to be removed from a volunteer position and also that he was being restricted from being around the building he was assigned. AJ Decision, p. 3. S1 was associated with Complainant's volunteer position at the Substance Use Disorders Clinic. Complaint File, p. 69, 135. S1's feedback led to Complainant receiving an overall lower score when all the scores from the panelists were tabulated. Id. As a result, the overall score for the five selectees was higher than Complainant's scores. Id. On September 12, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability (addiction)7 and reprisal for prior protected EEO activity when on May 5, 2011, he learned that the Agency did not select him for any of five Rehabilitation Therapy Specialist positions. AJ's Decision At the conclusion of the investigation, Complainant requested a hearing before an AJ. While the matter was pending before the AJ, the Agency filed a motion for summary judgment. Over Complainant's opposition, the AJ granted the Agency's motion and found discrimination. In her July 18, 2013 decision, the AJ found that Complainant had failed to establish a prima facie case of reprisal because he had not engaged in prior protected activity. The AJ reasoned that allegations of HIPAA violations fall outside of the EEO process and did not constitute prior EEO activity. The AJ also concluded that, even assuming that Complainant was covered under the disability statute, he did not present a prima facie case of disability discrimination because he was not subjected to an adverse personnel action under circumstances which would give rise to an inference of disability discrimination. In reaching this conclusion, the AJ noted that Complainant could identify no similarly situated comparators outside of his protected groups who were treated differently. Specifically, the AJ explained that because the position for which Complainant applied was a Schedule A position, all applicants for the position had to be disabled. The AJ also determined that there was no evidence to find that the Agency discriminated against the various types of disabilities of the applicants or cited any authority that would support a hierarchy of disability theory. The AJ also went further to find that the Agency had articulated a legitimate, nondiscriminatory reason for not hiring Complainant. He received a lower score than the selectees. The AJ also concluded that Complainant did not show that the Agency's reason for the selection was pretext. ANALYSIS AND FINDINGS The AJ issued a decision on summary judgment finding that there were no genuine issues of material fact regarding Complainant's disability and reprisal allegations. An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). I. Unlawful Disability-Related Inquiry And Breach of Confidentiality Complainant alleged that his medical records were unlawfully accessed by Employee A revealing that he was previously treated for a drug addiction. The AJ found that Complainant's allegation regarding access of his medical records constituted a HIPPA violation which was outside of Commission jurisdiction. "A 'disability-related inquiry' is a question (or series of questions) that is likely to elicit information about a disability." EEOC Compl. Man. (BNA), Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (Disability Guidance), No. 915.002, at * EEOM 902:183 (July 27, 2000).8 An employer's ability to make disability-related inquiries or require a medical examination is different at the pre-offer, post-offer, and employment stages. Disability Guidance, No. 915.002, at * EEOM 902:182. "At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity." Id. Employers must treat as confidential medical records all information obtained regarding the medical condition or history of an employee. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14(c)(1). Such information includes any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee. See Disability Guidance, No. 915.002, at 4 (July 26, 2000). Improper Agency disclosure of such medical information constitutes a per se violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). "Volunteers usually are not protected employees. However, an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers' compensation, and access to professional certification, even if the benefits are provided by a third party. The benefits constitute significant remuneration rather than merely the inconsequential incidents of an otherwise gratuitous relationship." EEOC Compl. Man. (BNA), Vol. 2, Sec. 2, Threshold Issues, at *605:9 (May 12, 2000). The Agency admitted to Employee A accessing Complainant's patient medical records on three separate occasions, June 1, June 11, and June 18, 2010. See Agency Motion for a Decision on Summary Judgment, p. 9; Complaint File, p. 75. Employee A's conduct could be a disability-related inquiry because it was likely to elicit information about Complainant's disability. In this particular case, Complainant's medical records contained information that he had been treated for an addiction. It is also unlikely that the inquiry was job-related and consistent with business necessity. Further, Employee A may have disseminated confidential medical information he garnered from the inquiry. However, it is not clear whether Complainant was in volunteer status or just a patient at the time the medical records were accessed. See, e.g., Privacy Fact Finding Document (August 2010), Complainant File, p. 74 (indicating that Complainant was advised his volunteer services were no longer needed in the area and he would be reassigned to another area); Agency's Motion for Summary Judgment, p. 9 (indicating that Complainant was a volunteer in the Substance Abuse Treatment Program from September 2009-March 2010, and that he was patient in the Compensated Work Therapy Program from June 2010-May 2012; indicating that Complainant was never an employee of the VANJHCS). Therefore, a hearing is warranted to determine if Complainant could be considered an employee for purposes of the Agency's inquiry and dissemination of confidential medical information, and whether the Agency's conduct constituted a violation of the Rehabilitation Act. II. Genuine Issues Of Material Fact Remain In Dispute Regarding Complainant's Non-selection The AJ found that there were no genuine issues of material fact regarding Complainant's non-selection to any of the five Vocational Rehabilitation Specialist positions. The AJ based this conclusion on the Agency's explanation that Complainant was not selected for the positions because his overall rating was lower than other applicants. AJ Decision, p. 3. Complainant's overall rating was lowered due to S1's employer reference. Id. In opposing summary judgment and throughout the investigation, Complainant argued that Employee A accessed his medical records which contained information about previous treatment for a drug addiction, and that Employee A relayed this information to his friend and supervisor, S1, who in turn provided a negative recommendation to the selection panel. Complainant's Opposition to Summary Judgment (Complainant's Opposition), p. 10; see also, Complaint File, 295-96. S1's negative recommendation led to Complainant receiving a lowered overall score from the panel, and according to Complainant, led to his non-selection. Complainant's Opposition, p. 4. Further evidence in the record indicates that S1 may also have accessed Complainant's medical records gaining knowledge of his addiction. See Sensitive Patient Access Report, Complaint File, p. 80. In support of establishing a link between Employee A's access of his medical records where he garnered information about Complainant's past addiction and Complainant's non-selection, Complainant points to evidence that Employee A expressed concern that Complainant did not have his urine tested in a few months. Privacy Fact Finding Document, Complainant File (August 2010), p. 74. Employee A made the comment in an open meeting where attendees were discussing Complainant's candidacy for the Rehabilitation Therapy Specialist position. Id.; see also, Agency Employee July 28, 2010 Statement, Complainant File, p. 28 (indicating that Employee A discussed testing of Complainant's urine during a meeting in relation to a discussion about Complainant's ability to work in the CWT program). Additionally, it is unclear whether S1 previously provided positive recommendations about Complainant, and subsequently changed that recommendation after Complainant filed a complaint about access to his medical records. See, e.g., S1's November 2009 Letter of Recommendation, Complaint File, p. 89; September 2010 Director's Letter Addressing Complainant's Concerns About Employee A (explaining that S1 reported positive things about Complainant). Finally, the Agency did not address Complainant's arguments about the purported link between Employee A and S1, and therefore did not establish that it was entitled to summary judgment. See, e.g., Vermont Teddy Bear Co. Inc. v. 1-800 Beargram Company, 373 F.3d 241, at 246 (2nd Cir. 2004) (explaining that under Federal Rules of Civil Procedure 56(c), in addition to showing an "absence of a genuine issues of material fact the moving party must show that he is 'entitled to a judgment as a matter of law'"). Therefore, Complainant established that genuine issues of material fact remain about why he was not selected for a Vocational Rehabilitation Specialist position, and the Agency did not demonstrate that it was entitled to summary judgment. A hearing is required to establish: (1) whether Complainant could be considered an employee at the time Employee A accessed his medical records, and if so, whether Employee A's actions constituted an unlawful disability-related inquiry and breach of confidentiality; and (2) whether Employee A's and E1's knowledge of Complainant's past addiction unlawfully influenced the selection process. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, which fully implemented the AJ's finding that Complainant was not subjected to disability or reprisal discrimination is VACATED. The Complainant is REMANDED for a hearing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. The hearing will address (1) whether Complainant could be considered an employee at the time Employee A accessed his medical records, and if so, whether Employee A's actions constituted an unlawful disability-related inquiry and breach of confidentiality; and (2) whether Employee A's and E1's knowledge of Complainant's past addiction unlawfully influenced the selection process. 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. 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 (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 (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 Complainants 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 12-30-16 __________________ 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 On July 18, 2013, the EEOC Administrative Judge issued a decision granting summary judgment and finding no discrimination. The AJ informed the parties that the Agency had to issue its decision within 40 calendar days. The Certificate of Service noted that receipt would be presumed within five days of mailing on July 18, 2013. The AJ's decision became the Agency's final decision by operation of law because the Agency's decision was not issued until September 18, 2013. See 29 C.F.R. § 1614.109(i). 3 This was not an accepted allegation in the formal complaint, however, the record reveals Complainant alleging that there was an unlawful disability-related inquiry and breach of confidentiality regarding his medical records. 4 The AJ's decision indicates that Complainant was first a volunteer and then an employee of CWT between the period June 2010-May 2012, however, it is unclear if, and when, Complainant became an employee. AJ's Decision, p. 2. Other information indicates that Complainant was just a patient. Agency's Motion for Summary Judgment, p. 8. 5 HIPAA ensures the privacy and protection of health information. Standards issued by the Department of Health and Human Services to implement HIPAA establish circumstances under which health information can be used or disclosed. 6 See 5 U.S.C. § 2103; 5 C.F.R. Part 213. The federal government consists of three types of services: competitive, excepted, and senior executive. Schedule A is an excepted service hiring authority available to federal agencies to hire or to promote individuals with disabilities without their having to compete for the position. Schedule A appointment authority is found at 5 CFR 213.3102(u). It was created to provide employment pathways specifically for individuals with disabilities. Although an employment applicant is not required to disclose a disability to apply for a federal position, a Schedule A applicant is required to disclose the disability to be eligible for Schedule A consideration or appointment. 7 Even though all applicants had a disability, it is not clear if, as the Agency asserts, all of them had a history of drug use like the Complainant. See, e.g., Agency's Motion for Summary Judgment, p. 15. Complainant would still be able to succeed on a disparate treatment claim based on a claim that he had a different disability than other applicants. McCutcheon v. U.S. Postal Serv., EEOC Appeal No. 01A00408 (Jan. 8, 2001). 8 Noting that "the prohibition against making disability-related inquiries applies to inquiries made directly to an employee, as well as to indirect or surreptitious inquiries such as a search through an employee's belongings to confirm an employer's suspicions about an employee's medical condition." Disability Guidance, No. 915.002, at * EEOM 902:183, n. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140073