The complainant is worried about medical records confidentiality, while the agency
is interested in discovering some pre-existing condition. Both sides have merit, but in this case, any
non submission of medical records will be used against the complainant when it comes time to figure out
non-pecuniary damages.
The record shows that the agency attempted to obtain supplemental
evidence in order to address mostly unspecified general concerns it
had with the credibility of complainant’s evidence.5 The record also
shows that complainant’s attorney responded to the agency’s request by
first asserting that the evidence complainant had initially provided was
adequate. A2 also noted that since neither FAD1 nor the Commission’s
regulations provide for formal discovery during this stage in the
proceedings, he objected to the agency’s requests. Nevertheless, A2
provided some of the information requested.
With respect to all counseling records, A2 responded that to the
best of his knowledge, all medical and psychological documents in
complainant’s possession have been submitted to the agency. A2 also
noted that complainant explained in his affidavit that he asked his
EAP counselors for their records in connection with this matter,
but learned that such records do not exist, apparently due to EAP
document-destruction practices.6 A2 also referred the agency to P1’s
report and stated that he believed that such report speaks for itself.
In response to a request for information regarding potential stressful
events unrelated to the discriminatory non-selections, A2 responded
that there were no such stressful events and noted that complainant’s
daughter was not a source of stress.
A2 also responded to the agency by raising complainant’s “over-arching
concern regarding the confidentiality of [complainant’s] medical
information” and advised the agency that he “formally” objected to a
request for medical information “unless and until he received appropriate
assurances” that the information will be kept confidential in accordance
with the law (i.e., the parties agree to enter into a protective order).
The agency did not respond to A2’s request for an agreement to address
complainant’s concern regarding the confidentiality of his medical
records and complainant did not provide additional medical records,
as a result.
The Commission has held that the agency is required to request “objective
and other evidence” when the agency is put on notice of a claim for
compensatory damages before the agency issues a final decision or makes
an offer of full relief. See Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993). The agency properly requested
specific and relevant supplemental evidence from complainant’s attorney
as a predicate to determining his entitlement to, and the amount of
compensatory damages.
Complainant’s apparent concern over the confidentiality of his
medical/psychological records does not justify his refusal to produce
such evidence to the agency.7 Without evidence in the record to
support complainant’s apprehension that the agency would breach his
confidentiality relating to such documents, there is no rationale for
requiring a confidentiality agreement.8 Smith v. Department of the Navy,
EEOC Appeal No. 01945190 (March 24, 1995). Accordingly, in our effort
to determine complainant’s entitlement to non-pecuniary damages, we
shall consider his apparent refusal to clarify and supplement the record.
reference:
Milton Aponte,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement Agency)
Agency.
Appeal No. 01200635321
Agency No. 040228
