Tips from the Other Side, Part 3

By Meghan Droste, March 14, 2018

As spring approaches, notwithstanding the snow that some of you were fortunate enough to get in recent weeks, the stores are filled with Easter-themed candy.  My personal favorite is the chocolate egg filled with peanut butter.  It is truly the perfect balance of two perfect flavors.  Don’t believe me?  I’ll wait while you compare those to the standard peanut butter-filled chocolate cups.  See what I mean?  (I’ll trust that you do.)

Seeing, and trying to avoid eating, too many of these Easter egg candies brought to my mind the other kind of Easter egg – an unexpected feature or item that you might find in a movie, video game, or other media.  If you would like an example, Google the word “askew.”  You’ll find that the results page is tilted.  An Easter egg in this context is just another type of treat that you might stumble upon.  What does all of this have to do with the federal sector EEO process, you might ask?  Well, sometimes in the course of an investigation or discovery, I stumble upon what we can think of as an Easter egg – an additional, unexpected cause of action that neither I nor my client had any knowledge of at the outset of the complaint.  One good, and unfortunately still common, example is improperly stored medical documentation.

Agencies are required to maintain the confidentiality of any and all medical documentation that they collect from their employees.  This means that supervisors, reasonable accommodation coordinators, anyone who touches an employee’s medical documentation, must keep that information in a separate, confidential file.  The medical documentation should not be stored in the same file as performance evaluations, counseling memos, examples of the employee’s work product or anything else that someone might maintain regarding that employee.  There is no room for interpretation on this one–the information must be stored separately.

I frequently request copies of personnel files, including unofficial supervisory files, during the course of litigation.  Often times, there isn’t anything that either helps or hurts the case in any real way.  But every once in a while, I find out that the supervisor has comingled my client’s medical documentation with his or her notes about my client, or with other unrelated information.  When I find that, I automatically seek to amend the complaint, because this is a separate cause of action.

These types of claims are rarely going to end well for the agency.  A complainant does not need to prove discriminatory intent or establish that someone who should not have had access to the documentation actually saw it.  It is enough to show that someone improperly comingled the records.  See Mayo v. Dep’t of Justice, EEOC App. No. 0720120004 (October 24, 2012) (holding that “[t]he Agency’s failure to maintain Complainant’s medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure”).

You can keep me from stumbling upon this kind of Easter egg by establishing a clear procedure for the storage of medical documentation and ensuring that everyone receives regular training on the procedure.  Feel free to send the chocolate and peanut butter kind my way!

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com.