0120112392
02-24-2012
James D. Soles, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
James D. Soles,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120112392
Agency No. 1K-211-0017-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
February 17, 2011 decision, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the Agency’s Processing & Distribution Facility
in Easton, Maryland. On January 24, 2011, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (African-American), color (Black), and in reprisal for
prior protected EEO activity when, when by letter dated December 21, 2010,
he became aware the Medical Unit Occupational Health Nurse contacted his
physician without his authorization in violation of his Health Insurance
Portability and Accountability Act (HIPAA) privacy rights.
On February 17, 2011, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
Complainant alleged that the Agency violated his HIPAA rights when he
received the Agency’s December 21, 2010 letter indicating that the
Family Medical Leave Act (FMLA) Coordinator and Medical Unit Occupational
Health Nurse consulted with his physician regarding his FMLA approved
leave. The Agency determined that Complainant’s allegations that
the Agency violated his HIPAA and/or Privacy Act rights were beyond the
purview of the federal EEO process. As a result, the Agency dismissed
the complaint for failure to state a claim. Complainant submitted no
arguments or contentions on appeal.
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. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994).
With specific regard to HIPAA claims, the Commission has previously
determined that matters concerning the HIPAA and the Privacy Act are not
within regulations enforced by the Commission. See Grove v. U.S. Postal
Serv., EEOC. Appeal No. 0120110456 (Jan. 5, 2012); Price v. U.S. Postal
Serv., EEOC Appeal No. 0120111033 (Dec. 8, 2011); Scott v. U.S. Postal
Serv., EEOC Appeal No. 0120101539 (Aug. 13, 2010); Cromer v. U.S. Postal
Serv., EEOC Appeal No. 0120083518 (Apr. 22, 2010).
Following a review of the record, the Commission finds that the Agency
properly dismissed Complainant’s complaint for failure to state a claim
because it raises a matter that is outside the Commission's jurisdiction.
The Department of Health and Human Services’ Office of Civil Rights
enforces the HIPAA Privacy Rule; therefore, the Commission is the improper
forum to raise an allegation of a HIPAA violation. Lee v. U.S. Postal
Serv., EEOC Request No. 0520110481 (November 4, 2011); see also Health
Information Privacy, http://www.hhs.gov/ocr/privacy/index.html. Further,
to the extent that Complainant is alleging a violation of the Privacy Act,
the Commission notes that the Privacy Act provides an exclusive statutory
framework governing the disclosure of identifiable information contained
in federal systems of records and jurisdiction rests exclusively in
the United States District Courts. See Bucci v. Dep't of Educ., EEOC
Request Nos. 05890289, 05890291 (Apr. 12, 1989). As such, the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21,
1994). Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
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 (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you file a request to reconsider and also file a
civil action, 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
February 24, 2012
Date
2
0120112392
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112392