The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEONTAE WILSON, )
)
Plaintiff, ) Case No. 20-cv-05695
)
v. ) Judge Sharon Johnson Coleman
)
ROBERT WILKIE, as Secretary, United )
States Department of Veteran Affairs, )
)
)
Defendant. )
)
MEMORANDUM OPINION AND ORDER
Plaintiff Deontae Wilson brings this action against her employer, the United States
Department of Veteran Affairs (the “Agency”), alleging violations of the Rehabilitation Act and the
Privacy Act. She contends the Agency accessed her confidential medical records and disseminated
information without her authorization, and later retaliation against her [1]. The Agency now moves
for summary judgment on all claims [35]. For the reasons below, the Court denies the Agency’s
motion for summary judgment.
Background
A. Wilson’s Employment with the Agency
Wilson began working for the Hines VA Medical Center in November 2015 as a medical
support assistant, GS-5, in the Patient Administration Service (PAS) call center. In October 2017,
Wilson was promoted to a GS-6 advanced medical support position by Cristine Mabrito, an assistant
chief of PAS. Sonia Faulk was Wilson’s supervisor in her GS-6 advanced medical support position
for a single day at the end of October 2017. On this day, Faulk allegedly disclosed Wilson’s private
medical information. Wilson complained about Faulk’s conduct to Mabrito, who apologized for
Faulk’s alleged behavior. VA management changed Wilson’s supervisor from Faulk to Penelope
Armstrong one day later.
The Agency investigated Faulk’s disclosure of Wilson’s private medical information and
proposed a 7-day suspension for Faulk. In the proposed suspension, the Agency alleged:
On October 30, 2017 following your verbal altercation with Ms. Deontae Wilson when
Ms. Wilson left the room you began to discuss Ms. Wilson’s medical condition in front
of Mrs. Shrise Blair PAS Administrator Officer and Mrs. Penelope Armstrong PAS
Supervisor claiming that the information was common knowledge. Both of those
employees informed you that they were not aware of Ms. Wilson’s condition and
stopped you from discussing the information any further. Discussing your
subordinates medical condition in front employees is inappropriate and will not be
tolerated.
Ultimately, the allegations in the proposed suspension were sustained, and Faulk was suspended for
improperly revealing Wilson’s medical information.
B. Wilson’s Administrative EEO Claims
On November 19, 2018, Wilson contacted a VA Equal Employment Opportunity
(“EEO”) counselor. Wilson complained to the VA EEO counselor that she was being
harassed due to a disability. As part of this complaint, Wilson claimed that on December 27,
2018, she confirmed, via a Sensitive Patient Access Report (“SPAR”) she requested from the
VA Hines privacy office, that her medical record had been accessed by varied staff as well as
a relative of Mabrito. During the EEO investigation, the Agency claimed that VA staff were
authorized to access Wilson’s VA medical file in order to schedule her appointments and
complete her care. During her deposition, Wilson testified during her deposition that VA
supervisors would have been allowed access to her medical record file in order to coordinate
her work schedule with her medical appointments at VAMC.
On June 26, 2020, the VA’s office of employment discrimination adjudication issued
a final decision finding that there was no evidence of discriminatory animus in any disclosure
of Wilson’s medical information since VA staff were authorized to access that information in
order to treat Wilson and schedule her appointments at any Veteran’s Affairs medical center
(“VAMC”).
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A
genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). When determining whether a genuine dispute as to any
material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of
the nonmoving party. Id. at 255; McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367 (7th Cir.
2019). After “a properly supported motion for summary judgment is made, the adverse party ‘must
set forth specific facts showing that there is a genuine issue for trial.’” Anderson, 477 U.S. at 255
(citation omitted).
Discussion
Wilson’s complaint alleged that the Agency violated the Rehabilitation Act, 29 U.S.C. § 791
et seq. and the Privacy Act, 5 U.S.C. § 552a et seq when her VA medical records had been accessed
and disclosed by Faulk and other employees without her authorization. Count I is a claim for
disclosure of confidential medical information in violation of the Rehabilitation Act. Count II
asserts violations of the Privacy Act. Count III raises retaliation under the Rehabilitation Act. We
address each in turn.
Count I - Rehabilitation Act
Under the Rehabilitation Act, an employer must treat any “information obtained regarding
[an employee's] medical condition or history ... as a confidential medical record, except that ...
supervisors and managers may be informed regarding necessary restrictions on the work or duties of
the employee and necessary accommodations.” 42 U.S.C. § 12112(d)(4)(C) (incorporating 42 U.S.C.
§ 12112(d)(3)(B)(i)); see 29 U.S.C. § 791(f). To succeed on a Rehabilitation Act claim, a plaintiff must
show that the defendant (1) “obtained [the plaintiff's] medical information through employment-
related medical examinations and inquiries”; (2) did not treat that information as confidential; and
(3) caused the plaintiff to “suffer a tangible injury as a result of the disclosure.” Foos v. Taghleef Indus.,
Inc., 132 F. Supp. 3d 1034, 1050 (S.D. Ind. 2015); E.E.O.C. v. Thrivent Fin. for Lutherans, 700 F.3d
1044, 1048 (7th Cir. 2012).
Here, the Agency argues that Wilson cannot satisfy the first element. The Agency claims
there is no evidence that Wilson’s medical information was obtained through employment-related
medical examinations and inquiries because Wilson alleges that her VA medical records were
unrelated to her employment. Wilson’s specific allegation, however, is that the Agency accessed and
reviewed Wilson’s medical records as part of a job-related medical inquiry. According to Wilson, the
Agency’s dual capacity as an employer and medical provider means that any inquiries into her
medical conditions therefore qualified as job-related medical inquiries under the Rehabilitation Act.
The Court disagrees with the Agency. The Agency has a dual status as an employer and
medical provider. It is undisputed that the Agency obtained Wilson’s medical records because of
her status as a patient. The record also shows that Wilson’s SPAR was accessed by Agency
employees, and the Agency was unable to determine the validity of the employees’ right to access
the information. Further, it is undisputed that Wilson testified during her deposition that VA
supervisors would have been allowed access to her medical record file in order to coordinate her
work schedule with her medical appointments at VAMC. These facts raise a genuine dispute as to
whether the Agency obtained Wilson’s medical information through employment related inquires.
Next, the Agency argues that Wilson cannot satisfy the third element because she has failed
to present any evidence that she suffered a tangible injury as a result of the disclosure. Wilson
argues that she has suffered emotional pain and mental anguish. The Agency claims that emotional
pain is insufficient to show entitlement for damages for a Rehabilitation Act violation.
The Court disagrees. The Seventh Circuit has found plaintiffs must show at least show some
tangible injury-in-fact caused by the Rehabilitation Act violation. O'Neal v. City of New Albany, 293
F.3d 998, 1007 (7th Cir. 2002). District courts in this circuit have clarified that emotional harm can
be sufficient for the purposes of the Rehabilitation Act. See Snyder v. BNSF Ry. Co., No. 4:17-CV-
04263-JEH, 2019 WL 4738259, at *4 (C.D. Ill. Sept. 28, 2019) (“ ’Bare allegations of
mental/emotional distress, mental anguish, stress, and inconvenience’ … requires ‘evidence as to the
actual existence of such harms.’ “); Brown v. McDonough, No. 120CV01154JPHMJD, 2021 WL
1758902, at *2 (S.D. Ind. May 3, 2021). Here, Wilson testified as to the physical effects of her
emotional harm and mental anguish. Accordingly, the Court finds that Wilson has presented
sufficient evidence to raise this issue before a jury. Thus, summary judgment as to Wilson’s
Rehabilitation Act claims is denied.
Count II - Privacy Act
As an initial matter, the Agency asserts that Wilson’s Privacy Act claims are barred under the
Civil Service Reform Act (“CSRA”). The CSRA created a comprehensive system of procedural
protections for civil service employees faced with adverse personnel actions, preempting the field
and superseding administrative and judicial avenues for appeals of adverse actions to the district
courts. See Fausto v. United States, 484 U.S. 439, 444–45, 108 S.Ct. 668, 671–72, 98 L.Ed.2d 830
(1988). The statute envisions a uniform system of appeals. An employee who wishes to complain
of an adverse personnel decision must first appeal to the Merit Systems Protection Board
(“MSPB”). 5 U.S.C. §§ 7513(d), 7701(a).
The Agency argues that because Wilson’s Privacy Act claims allege a prohibited personnel
practice under the CSRA, her recourse is to pursue her remedies before the MSPB. However, the
Agency does not identify the prohibited personnel practice contained within the CSRA that
encompasses Wilson’s claims under the Privacy Act. The CSRA’s exhaustive list of prohibited
personnel practices does not contain a prohibited personnel practice for a federal agency’s improper
disclosure of its employee’s confidential medical information. See 5 U.S.C. §2302(b)(1)-(14). The
Agency’s reliance on Yu v. U.S. Department of Veterans Affairs, 528 F. App’x 181 (3rd Cir. 2013) is
misplaced as the case, unlike here, involved provisions explicitly outlined in the CSRA. See 5 U.S.C.
§ 2302(a)(2)(A). The Court also unpersuaded by the decisions in Kleiman v. Department of Energy, 956
F.2d 335 (D.C. Cir. 1992) and McMillan v. Garland, 2021 WL 5850884 (D. Ariz. Dec. 9, 2021) as the
decisions do not identify the prohibited personnel practices outlined in the CSRA. Thus, the Court
finds that Wilson’s Privacy Act claim is not barred.
The key elements of a cause of action under the Privacy Act are: (1) agency disclosure (by
any means of communication); (2) to an individual or another agency; (3) of a “record” contained in
a “system of records”; (4) which is unauthorized by the individual; (5) not within an exception; (6)
has an adverse effect on the individual, which requires (i) an adverse standing component and (ii) a
casual nexus between the disclosure and the adverse effect; and (7) that the agency action be in a
manner which was “intentional” or “willful.” See 5 U.S.C. § 552a; Carlson v. Gen. Servs. Admin., No. 04
C 7937, 2006 WL 3409150, at *3 (N.D. Ill. Nov. 21, 2006) (Leinenweber, J.) (citing Quinn v. Stone,
978 F.2d 126, 131 (3d Cir.1992)). The Privacy Act prohibits more than dissemination of records
themselves, but also “nonconsensual disclosure of any information that has been retrieved from a
protected record.” Carlson, 2006 WL 3409150, at *3 (citing Bartel v. F.A.A., 725 F.2d 1403, 1408
(D.C. Cir. 1984)).
The Agency’s sole argument is that Plaintiff cannot show that the alleged violation was
intentional or willful. Specifically, the Agency claims that the employees who were involved in
accessing and disclosing Wilson’s VA medical records reasonably believed that they were allowed to
do so in order to schedule her appointments and complete her care because Wilson was a patient.
However, when Sonia Faulk and ‘Tiffany Alexander improperly accessed Wilson’s medical records
and intentionally discussed the contents of those confidential medical records with numerous
Agency employees who had no need for Wilson’s medical records in the performance of their
duties, the Agency violated the Privacy Act. The Agency failed to response to this argument in their
reply brief. It is undisputed that Faulk was suspended for improperly revealing Wilson’s medical
information. A reasonable jury could find Faulk’s conduct to be willful and intentional. Therefore,
there is a genuine dispute of a material fact regarding whether Faulk’s conduct violated the Privacy
Act. Thus, summary judgment as to Wilson’s Privacy Act claims is denied.
Count II - Rehabihitation Act Retahation
Finally, the Agency moves for summary judgment on Wilson’ retaliation claims under the
Rehabilitation Act. However, Wilson withdrew these claims in her response brief. ‘Thus, the Court
dismisses these claims as moot.
Conclusion
For these reasons, the Court denies Agency’s motion for summary judgment on Counts I
and IT and dismisses Count III as moot.
ISSO ORDERED.
Date: 9/27/2023 BOLLE
Entered:
SHARON JOHNSON COLEMAN
United States District Judge