U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heath P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120161146 Agency No. 4J604004316 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated February 3, 2016, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's facility in Bolingbrook, Illinois. On January 20, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity when: 1. on November 6, 2015, management violated 20 CFR 10.506 and improperly used and disclosed Complainant's medical information. On February 3, 2016, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. First, the Agency acknowledged that Complainant may have felt harassed by the alleged discriminatory event. However, the Agency determined that there was no persuasive evidence in the record that Complainant 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 incidents. Second, the Agency determined that the totality of the circumstances and the actions complained of, even if true, are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment. The Agency also determined that Complainant's assertions were too vague to state an actionable claim. The Agency found that Complainant was lodging a collateral attack on the proceedings of another forum, specifically proceedings relating to a possible Office of Inspector General (OIG) investigation. The instant appeal followed. On appeal, Complainant contends that on November 6, 2015, he had a scheduled appointment with his Primary Care Physician. During that appointment, Complainant alleged that the Physician informed him that he had received a telephone call from an individual who identified herself as an employee of OIG (hereinafter referred to as OIG Employee). The Physician relayed that the OIG Employee called in regard to three separate foot injury claims that had been submitted to the Office of Workers Compensation Program (OWCP) by Complainant. Complainant contends that he never saw his Physician for his foot injuries, and that he visits a specialized podiatrist for his foot injuries. Complainant contends that the only plausible explanation as to why OIG Employee would have had the Physician's contact information is if the Agency Postmaster gave OIG agents copies of his medical information, which he had previously submitted for other unrelated reasons. Complainant contends that the Postmaster should not be giving out his private medical information without his consent. In regard to the Agency's dismissal on the grounds that Complainant was lodging a collateral attack, Complainant contends that he is not disputing that OIG agents were not doing their job properly, or the results of the investigation. Complainant asserts, instead that he was disputing the actions of Agency management, who should not have released his confidential medical records without permission. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; §1614.106(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 Americans with Disabilities Act of 1990 (ADA) requires employers to 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. 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 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), 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). Generally, medical information must be kept confidential. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the American with Disabilities Act ("Guidance"), Notice No. 915.002 (rev. Oct 17, 2002). Thus, we find that Complainant is alleging a per se violation of the Rehabilitation Act. See Beer v. U.S. Postal Serv., EEOC Request No. 0120120029 (November 15, 2012). Any possible Agency assertion that its obtainment of Complainant's medical information would be appropriate under a "need-to-know" perspective would not be relevant to the procedural issue of whether Complainant has set forth an actionable claim. Id. We determine further that the subject claim has been articulated with sufficient clarity. We determine that Complainant has addressed a personal loss or harm to a term, condition or privilege of employment for which there is a remedy. We determine that Complainant has raised a claim involving a personal loss or harm to a term, condition or privilege of employment for which there is a remedy. We acknowledge that the Agency determined that the subject claim constituted a collateral attack on an Office of Inspector General proceeding. However, we determine that the matter alleged in the instant formal complaint is not a collateral attack on another process, but instead addresses Complainant's belief that the Agency failed to keep his medical information confidential. We determine that this matter states a justiciable claim. See, e.g. Graves v. U.S. Postal Service, EEOC Request No. 01980289 (March 22, 2000). CONCLUSION The Agency's dismissal of the formal complaint for failure to state a claim is REVERSED. The formal complaint is REMANDED to the Agency for further processing pursuant to the ORDER below. 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 April 26 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 0120161146 2 0120161146