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Federal Employees: You be the Judge


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Michelle  
#1 Posted : Monday, June 7, 2021 7:56:20 AM(UTC)
Michelle

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A few years ago, I was injured severely in the workplace. After being intimidated to return to work (always done verbally), in spite of my physician’s recommendations to the contrary, I was then bullied and intimidated by the HR manager to submit a new reasonable accommodation (RA) request, although the HR manager refused to answer my questions about the status of my initial RA submission. There’s more but the outcome was my seeking mental health services, submitting a new request under duress, and physically going back into the office with an RA agreement in place.

While I was back in the office, the HR office failed to uphold that RA agreement on several occasions by failing to provide the agreed upon accommodation and by acting unprofessionally (can’t specify here). To date, I filed an EEO complaint, received my ROI, and am currently responding to the Interrogatories, although the agency's attorney wants about a decade’s worth of my medical info. My injury was only about five years ago and it seems HIPAA does not permit mental health records to be shared directly to patients.

I’ve tried to comply by obtaining written and signed statements from my past and present healthcare providers confirming that I was/am a patient and the nature of the treatment. But this seems insufficient as the agency attorney believes my medical notes are essential because those notes would form the basis for the conclusions drawn by the medical and mental health providers and may serve as the basis of my claims of entitlement to compensatory damage and the agency would want them to defend the matter.

What are my rights regarding what medical information I am required to share? In the interim, I am searching for jobs at other agencies, as well as with another sub-agency within the overarching agency. However, I also wonder if this case would follow me and be used by another federal agency to terminate me during the probationary period. I have had trouble finding an attorney to represent federal workers and posts from other feds seem to indicate the lawyers that are willing to represent feds usually and take a LOT money for nothing.

I welcome any feedback.
DroneBee  
#2 Posted : Wednesday, June 9, 2021 1:07:47 PM(UTC)

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Originally Posted by: Michelle Go to Quoted Post
A few years ago, I was injured severely in the workplace.

I'm sorry to hear about your injury.

Originally Posted by: Michelle Go to Quoted Post
After being intimidated to return to work (always done verbally), in spite of my physician’s recommendations to the contrary, I was then bullied and intimidated by the HR manager to submit a new reasonable accommodation (RA) request, although the HR manager refused to answer my questions about the status of my initial RA submission.


Of course - the agency doesn't care about you.

Originally Posted by: Michelle Go to Quoted Post
While I was back in the office, the HR office failed to uphold that RA agreement on several occasions by failing to provide the agreed upon accommodation and by acting unprofessionally (can’t specify here).


Of course - the agency doesn't care about you.

Originally Posted by: Michelle Go to Quoted Post
To date, I filed an EEO complaint, received my ROI, and am currently responding to the Interrogatories, although the agency's attorney wants about a decade’s worth of my medical info. My injury was only about five years ago and it seems HIPAA does not permit mental health records to be shared directly to patients.

I’ve tried to comply by obtaining written and signed statements from my past and present healthcare providers confirming that I was/am a patient and the nature of the treatment. But this seems insufficient as the agency attorney believes my medical notes are essential because those notes would form the basis for the conclusions drawn by the medical and mental health providers and may serve as the basis of my claims of entitlement to compensatory damage and the agency would want them to defend the matter.

What are my rights regarding what medical information I am required to share?


This is exactly what I've been stating for years - the "system" is no "system" - this should be equitable, not harassing. If the "system" was fair, the agency would be providing you and attorney to fight against discrimination.

You have the "right" not to share anything. The agency attorney will submit a motion to compel which the AJ will issue. You will be required to submit the information or your complaint will be thrown out for not adhering to the AJ order.

Originally Posted by: Michelle Go to Quoted Post
In the interim, I am searching for jobs at other agencies, as well as with another sub-agency within the overarching agency.


Yes - in retrospect, you should have left the agency immediately and never filed an EEO complaint. Most who file are fired or leave due to harassment. The agency will circle the wagons and protect itself. You will be deemed a liar, thief, etc.

Originally Posted by: Michelle Go to Quoted Post
However, I also wonder if this case would follow me and be used by another federal agency to terminate me during the probationary period.


If you are not in a probationary period now, you shouldn't be in one in your new position. Get out if you can! Don't tell anyone about the complaint.

Originally Posted by: Michelle Go to Quoted Post
I have had trouble finding an attorney to represent federal workers and posts from other feds seem to indicate the lawyers that are willing to represent feds usually and take a LOT money for nothing.


This "system" is not fair. The victim has to pay for his/her own attorney or go it alone (pro se) which is like shooting fish in a barrel for the agency attorneys. The AJ and the agency attorneys all know each other - they do this day in and day out. You have to do this while doing your job - and you don't know the process.

Originally Posted by: Michelle Go to Quoted Post
I welcome any feedback.


Get a new job!!! It's not worth the fight. You will be completely maligned, and the agency will drain you spiritually, mentally, and physically, and your attorney will drain you financially.
old fed  
#3 Posted : Wednesday, June 9, 2021 5:14:17 PM(UTC)
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." My injury was only about five years ago and it seems HIPAA does not permit mental health records to be shared directly to patients. "

I just did a quick look and the only thing I can find in this regard relates specifically to psychotherapy notes and not other MH records?

https://www.jdsupra.com/...y-notes-and-other-42359/
frankgonzalez  
#4 Posted : Thursday, June 10, 2021 7:56:32 AM(UTC)
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You can decline providing your medical information, BUT, the agency can request a negative inference from the lack of response.

What they are looking for is did the events at work cause the issue or make it worse (this impacts what damages they may be libel for).

As for legal representation, yes..they are not cheap (think $350-500+ an hour), but federal labor law is a very specialized area of the law. That said, many good firms (Tully Rinckey, Gilbert Employment Law, etc) will often to a free or low cost evaluation of your case to see if you have a reasonable chance of success or if you may find yourself in an uphill battle with little chance of success. If any attorney says you cannot lose....RUN!!! They cannot guarantee an outcome, so if they say they can...they are just after your money. If they say you have a good chance to win based on X, y and z, but they cannot guarantee what the judge will decide...then they are probably not simply after your money.
You should have voted Cthulu...the greatest of all Evils
33years_here  
#5 Posted : Tuesday, July 13, 2021 1:51:02 PM(UTC)
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Thoughts about MEDICAL RECORDS:

My Agency asked for the same. I gave them two doctors' letters. Here's how.

1. Agency's list of proposed stipulations conceded that I had a covered disability under the ADA. So no need for me to prove it.

2. The Agency will probably respond to some of your requests for discovery as being “too vague', "unnecessarily broad" and/or irrelevant.” You can do the same.

- State your position that ten years of your private medical information is way beyond what is required to establish that you have a covered disability, and ask that the Agency show how all your records for the past 10 years are relevant to your claim. They won't be able to do that, especially if they've already stipulated to your covered disability.

- Attach CURRENT documentation that establishes you have a covered disability under the ADA and establishes any damages you might have. I had two letters - one from my MD, establishing that I had a covered disability & listing my occupational limitations, and one from my therapist stating his observations about how the case had affected my overall mental health. In my case, I had a long-standing mental illness that I successfully managed without accommodation for 34 years. And I'd never been disciplined for anything.

3. Don't worry too much. I cannot imagine any AJ requiring 10 years of ALL medical records. Mine refused to even consider anything that happened before I submitted my request for reasonable accommodation. Most judges hate drama. EEOC AJ's don't seem to be any different in that respect. My impression is that they try to keep the scope of their hearings relevant to the decision before them.

4. Even if the records get in, you can ask questions at hearing like, “If you recognized a problem for 10 years, why did you wait until this request to address it? Employers have obligations to approach YOU when a covered disability is causing problems on the job. Look up those obligations and ask them to justify why THEY didn’t meet each & every one for all those years. Just hammer that one home.

5. Look up “Eggshell Defense” for info on how this tactic could actually backfire on them when the AJ starts to assess damages.

For the record, I am NOT AN ATTORNEY. Just a geek plaintiff who won that researches things. Please research my suggestions for yourself as my interpretations may be off.
Also, this may be too late for you, Michelle, sorry if it is... but I'm putting my two cents worth here for future reference.
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