U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120152203 Agency No. 4X048003615 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 1, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Customer Care Agent at the Agency's Customer Care Center facility in Los Angeles, California. On May 12, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. on or about March 20, 2015, Complainant learned that her personnel files had copies of her medical history and medical records in them. On June 1, 2015, the Agency issued the instant final decision. Therein, the Agency stated that Complainant had requested a copy of her "office files" during the processing of a Merits Systems Protection Board (MSPB) complaint (not at issue in the instant appeal); and that upon receiving the file, she discovered that it contained copies of her medical records. The Agency stated that Complainant's sole claim in the formal complaint is that her personnel file contained copies of her medical records. The Agency argues that Complainant has not asserted that anyone gained improper access to her medical records. The Agency noted that Complainant alleged that her records were kept unlocked and could have been seen by anyone, but that Complainant had not proven that her records were not secured. The Agency stated that there was no persuasive evidence in the record that she was subjected to any adverse employment action or denied any entitlement in relation to a term, condition or privilege of employment as a result of the incident complained of. Therein, the Agency dismissed Complainant's formal complaint pursuant to 29 C.F.R. 1614.107(a), for failure to state a claim, finding that Complainant was not aggrieved. On appeal, Complainant contends that her medical records were being improperly stored and possibly disclosed to all employees when it was made available to any employee at her work site. Complainant contends that the Agency violated the Rehabilitation Act when her medical records were not properly stored in a separate secured location. In response, the Agency contends that the formal complaint was properly dismissed for the reason provided in the final decision. ANALYSIS AND FINDINGS 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). The Agency improperly dismissed the formal complaint for failure to state a claim. The Rehabilitation Act provides for the confidentiality of medical records, in pertinent part as follows: "Information obtained... regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that supervisors and managers may be informed regarding necessary restriction on the work or duties of the employee and necessary accommodation." 29 C.F.R. § 1630.14(c); see also Valle v. United States Postal Service, EEOC Request No. 05960585 (September 5, 1997), Short v. Department of the Air Force, EEOC Appeal No. 01980456 (October 7, 1999). 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: Pre-employment 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. If an agency discloses medical information pertaining to a complainant in a manner that did not conform with this regulation, then its act of dissemination would constitute a violation of the Rehabilitation Act. We note that there is no requirement of a showing of harm beyond the violation. Hampton, supra. See also Complainant v. United States Postal Serv, EEOC Appeal No. 01A52139 (June 24, 2005). In this case, Complainant is in essence, alleging a per se violation of the Rehabilitation Act's confidentiality provisions, when she requested her "office files," and received her files with various medical records contained therein. CONCLUSION We REVERSE the Agency's final decision dismissing the instant formal complaint and we REMAND this matter to the Agency for processing in accordance with the ORDER below. 2 ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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 (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 (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Carlton M. Hadden, Director Office of Federal Operations February 5, 2016 __________________ 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 Finally, we note that on appeal, Complainant argues that the matter raised in her formal complaint was not properly defined. We determine, however, that pre-complaint documents and the formal complaint reflect that Complainant raised the claim that has been discussed above. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152203 5 0120152203