Federal Employee Refusing to Turn Over Medical Records to EEO Investigator Failed to Exhaust Claim

Under the Rehabilitation Act (as with many other federal employment statutes), claimants must first exhaust their administrative remedies before proceeding with a civil action against their employer.  In some instances, courts may excuse an employee’s failure to exhaust administrative remedies if he or she clearly made a “good faith effort” to cooperate.  But in the case of Koch v. White, decided earlier this month by the U.S. Court of Appeals for the D.C. Circuit, the employee actually made a deliberate effort not to cooperate with the investigation into his claims — and, predictably, his case was dismissed.

Randolph Koch (“Koch”) was an employee of the Securities and Exchange Commission (SEC) in Washington, D.C.  After his doctor recommended that Koch participate in a cardiac rehabilitation program, he asked the SEC for a flexible work schedule so he could attend the program without having to use leave.  The Rehabilitation Act of 1973 (the “Act”) requires an employer to provide “reasonable accommodation” to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.  In Koch’s case, given his heart condition, a flexible work schedule appeared to be a reasonable accommodation.

When more than a year passed without the agency acting on his request, Koch filed a complaint with the agency’s Equal Employment Opportunity (EEO) Office.  The EEO then hired an outside firm to conduct an investigation into his claims.  Despite the presence of a non-disclosure clause in the agency’s agreement with the investigator assigned to his case, Koch became fearful that the investigator would not abide by the Privacy Act of 1974 when provided Koch’s personal medical records.  He ultimately stopped participating in the investigation altogether, and he insisted that the EEO office deny the investigator access to his medical records.  Soon thereafter, the EEO dismissed his complaint for failure to cooperate.

With his administrative complaint now concluded, Koch filed a civil lawsuit against the SEC in federal court, alleging that the agency had violated the Rehabilitation Act by failing to act on his request for reasonable accommodation.  The U.S. District Court granted summary judgment to the agency, holding that Koch’s refusal to participate in the investigation constituted a failure to exhaust his administrative remedies.  The employee appealed, arguing that his failure to exhaust should be excused due to his “reasonable and sincere” Privacy Act concerns.

On appeal, the D.C. Circuit held that Koch failed to sufficiently explain “how his concern over the disclosure of his medical records justified his failure” to participate in the investigation.  The Court also ruled that Koch hadn’t articulated a legitimate concern regarding the privacy protections (or alleged lack thereof) between the investigator and the agency.

This decision illustrates how imperative it is for an employee interested in suing his employer under the Rehabilitation Act and/or the Americans with Disabilities Act (ADA) to first exhaust his administrative remedies.  Failing to provide documents and testimony, or refusing to cooperate with investigators, can force an agency to dismiss or cancel the complaint, and will likely prevent the employee from being able to bring a civil action against the employer thereafter.

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