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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2002 Decided February 7, 2003
No. 01-5395
JOHN DOE,
APPELLANT
v.
UNITED STATES POSTAL SERVICE AND
UNITED STATES OF AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01398)
Dale Edwin Sanders argued the cause for appellant. With
him on the briefs was Patricia A. Smith.
Daniel Bruner was on the brief for amicus curiae Whit-
man–Walker Clinic Legal Services Program in support of
appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Sherri Evans Harris, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: An HIV-positive postal worker who
first revealed his medical condition to Postal Service officials
as part of a request for leave pursuant to the Family and
Medical Leave Act alleges that one of those officials disclosed
his HIV status to his co-workers in violation of both the
Privacy Act and the Rehabilitation Act. The district court
granted summary judgment in favor of the Postal Service on
both claims. Because we conclude that appellant has raised a
genuine issue of material fact as to whether Postal Service
officials disclosed information retrieved from his leave request
form, and that the form constitutes an employer ‘‘inquiry’’
subject to the Rehabilitation Act’s confidentiality require-
ment, we reverse.
I.
This case concerns the interaction between three statutory
schemes. The Family and Medical Leave Act of 1993
(FMLA), 29 U.S.C. § 2601 et seq., entitles eligible employees,
including certain federal government employees, to take up to
twelve weeks of unpaid leave per year for medical and other
specified reasons. Id. §§ 2611(2), 2612(a)(1). The Privacy
Act of 1974, 5 U.S.C. § 552a, generally forbids federal agen-
cies from ‘‘disclos[ing] any record which is contained in a
system of records by any means of communication to any
person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual
to whom the record pertains.’’ Id. § 552a(b). Finally, the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which
generally prohibits federal government employers from dis-
criminating on the basis of disability, also forbids such em-
3
ployers from disclosing employees’ private medical records,
incorporating by reference the medical examination confiden-
tiality provision of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12112(d). See 29 U.S.C. §§ 791(g), 794(d). That
provision is more specific than the Privacy Act. A general
prohibition on employer inquiries into employees’ medical
conditions, it contains two exceptions: one for ‘‘voluntary
medical examinations TTT which are part of an employee
health program available to employees at that work site,’’ and
another for ‘‘inquiries into the ability of an employee to
perform job-related functions.’’ 42 U.S.C. § 12112(d)(4)(B).
Medical information obtained under either exception must be
treated as a confidential record. Id. § 12112(d)(4)(C).
These three statutes converged when John Doe, a mainte-
nance worker at the United States Postal Service’s Brent-
wood facility in Washington, D.C., missed several weeks of
work in March and April 1998 while suffering from an AIDS-
related illness. In late April, Doe’s direct supervisor, Patricia
Downs, sent him a letter about his extended absence. The
letter instructed Doe to complete and submit, within five
calendar days, a Postal Service administrative form and a
medical certificate ‘‘provid[ing] an explanation of the nature
of [the] illness.’’ If he failed to submit these forms, the letter
warned, he would face potential disciplinary action for being
absent without leave. The letter also stated:
Your condition may qualify you to be covered by the
Family and Medical Leave Policies. Also[ ] included for
your convenience are[ ] Department of Labor Form WH
380 (Certification of Health Care Provider) and PS Form
3971 [the Postal Service administrative form], in the
event that you believe your absence qualifies you under
the Family and Medical Leave Act. You must still
contact me within five (5) calendar days advising me of
the status of your absence.
Faced with these options, Doe chose to complete Depart-
ment of Labor Form WH 380, the FMLA medical certifica-
tion form. One portion of that form requires the employee’s
4
health care provider to certify that the employee suffers from
a ‘‘serious health condition’’ and to ‘‘[d]escribe the medical
facts which support [the] certification.’’ 29 C.F.R. pt. 825
app. B. Responding to these questions, Doe’s physician
stated that Doe had ‘‘AIDS related complex’’ and ‘‘chronic
HIV infection.’’ Although Postal Service employees usually
submit such forms to their direct supervisors, Doe, having
never told anyone at the Postal Service about his HIV status,
was hesitant to reveal this sensitive information to Downs.
On her recommendation, he instead submitted the form to
Postal Service administrative assistant Paul Neff. For rea-
sons not relevant here, the Postal Service ultimately denied
Doe’s FMLA request.
When Doe returned to work, he discovered that his HIV
status had become common knowledge among his co-workers,
many of whom commented to him about it. Several identified
Doe’s management-level supervisor, Melvin Tahir, as the
source of the information.
Relying on the ADA’s medical confidentiality provision,
Doe filed a Rehabilitation Act complaint with the Equal
Employment Opportunity Commission, which commenced an
investigation. When the statute of limitations began to run
out on his Privacy Act claim, Doe withdrew his EEO com-
plaint and filed suit in the United States District Court for
the District of Columbia, alleging that Postal Service officials
disclosed medical information contained in his FMLA certifi-
cation form in violation of both the Privacy Act and the
Rehabilitation Act. The district court granted the Postal
Service’s motion for summary judgment on both claims, con-
cluding that (1) Doe had failed to raise a genuine issue of
material fact as to whether a Postal Service employee had
improperly disclosed information that had been retrieved
from his medical records in violation of the Privacy Act, and
(2) the FMLA form was not an employer inquiry subject to
the ADA’s medical confidentiality requirement. Doe v. Unit-
ed States Postal Serv., No. 00–1398, mem. op. at 24–25, 29–31
(D.D.C. Sept. 10, 2001). Doe appeals. Our review is de novo.
See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir.
1998).
5
II.
We start with Doe’s Privacy Act claim. Enacted to ‘‘safe-
guard[ ] the public from unwarranted TTT dissemination of
personal information contained in agency records,’’ the Priva-
cy Act generally prohibits ‘‘nonconsensual disclosure of any
information that has been retrieved from a protected record,’’
unless that information falls into one of a number of statuto-
ry exceptions, none of which applies here. Bartel v. FAA,
725 F.2d 1403, 1407, 1408 (D.C. Cir. 1984). The Postal
Service does not dispute that Doe’s FMLA certification form
was contained in an agency record subject to the Privacy
Act’s confidentiality requirements, nor does it argue that the
information on the form qualifies for one of the statutory ex-
ceptions. It claims only that Doe has offered insufficient evi-
dence that a Postal Service employee (1) disclosed informa-
tion about Doe’s medical condition that (2) the employee had
retrieved from Doe’s FMLA certification form. In consider-
ing this argument, we keep in mind that summary judgment
may not be granted if the record reveals a genuine issue of
material fact—that is, ‘‘if the evidence is such that a reason-
able jury could return a verdict for the nonmoving party.’’
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Moreover, ‘‘[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge TTT on a motion
for summary judgment.’’ Id. at 255.
Applying this standard, we think Doe produced enough
evidence of disclosure to survive summary judgment. As to
the first disputed element of the Privacy Act cause of ac-
tion––that a Postal Service official disclosed confidential medi-
cal information––Doe points to record evidence indicating that
his management-level supervisor, Melvin Tahir, told co-
workers about his HIV status. Specifically, one of Doe’s co-
workers testified at his deposition that he first learned of
Doe’s HIV status from an acting supervisor, who in turn
identified his source as Melvin Tahir. Three other co-
workers said either that Tahir had told them directly about
Doe’s HIV status or that they overheard Tahir telling others
of it.
6
To be sure, the record contains conflicting accounts of
Tahir’s role in spreading the news of Doe’s HIV status. Most
important, Tahir denies having told anyone about Doe’s condi-
tion, claiming he knew nothing about it until he was scheduled
to answer Doe’s EEO complaint. Pointing to this and other
conflicts in the evidence, the district court quite properly
declined to rest its grant of summary judgment for the Postal
Service on this ground. Doe, mem. op. at 28–29. Instead,
the district court granted summary judgment on the second
disputed element of the Privacy Act cause of action––that Doe
provided no evidence ‘‘that gives rise to a reasonable infer-
ence that USPS supervisors became aware of Plaintiff’s con-
dition through his FMLA form,’’ as opposed to some other
source, or even simple speculation. Id. at 27, 29–31. On this
point, we disagree.
As we view the record, Doe offered two pieces of evidence
from which a reasonable jury could conclude that a Postal
Service employee retrieved information about his HIV status
from protected medical records. First, Doe’s co-workers’
deposition testimony indicates that the disclosures occurred
after Doe submitted his FMLA form. As Doe points out, this
circumstantial evidence suggests that Tahir got the informa-
tion from the form. Second, deposition testimony indicates
that in the normal course of business, Tahir obtained and
reviewed leave requests. Not only did former acting supervi-
sor Eddie Lowe testify that Tahir was in charge of handling
FMLA requests, but Tahir’s boss, Thomas Duchesne, stated
in his EEO affidavit that the maintenance department for-
warded such medical documentation to the employee’s man-
ager or supervisor ‘‘as necessary.’’
As the Postal Service points out, a second Duchesne decla-
ration, attached to its reply brief in support of summary
judgment, indicates that the procedure Eddie Lowe described
may have changed in September 1997, when Duchesne
brought Paul Neff in ‘‘to take over some responsibilities
previously assigned to Mr. Tahir,’’ including tracking and
processing FMLA requests. Although this change occurred
well before Doe submitted his form, Duchesne’s first affidavit
indicates that at least as late as the EEO investigation of
7
Doe’s complaint, FMLA forms were still shared with manag-
ers and supervisors such as Tahir. These two statements do
not necessarily contradict one another, for it seems perfectly
possible that medical leave information continued to be
shared with relevant managers and supervisors even after
Paul Neff assumed responsibility for tracking and processing
the requests. In any event, whatever conflict may exist must
be resolved at trial, where Doe will have an opportunity to
question Duchesne about his two statements. See Rogers
Corp. v. EPA, 275 F.3d 1096, 1103 (D.C. Cir. 2002) (‘‘Sum-
mary judgment is inappropriate when contradictory infer-
ences may be drawn from the evidence.’’); cf. Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999) (a
nonmoving party cannot defeat summary judgment by sub-
mitting, without explanation, an affidavit contradicting a prior
sworn statement).
According to the Postal Service, this course of business
evidence is irrelevant in light of Paul Neff’s testimony that in
this particular case, he put Doe’s FMLA form in a locked file
cabinet and never shared the form’s contents with anyone.
But Neff’s testimony also established that Tahir had other
ways of obtaining the information, such as retrieving the file
cabinet keys from Neff’s unlocked desk. Quite apart from
these concessions, moreover, the course of business evidence,
along with the evidence of the timing of the disclosures of
Doe’s condition, create a sufficient basis for a jury to discredit
Neff’s testimony and conclude that Tahir did in fact retrieve
Doe’s FMLA form from the file.
True, Doe’s evidence of retrieval is purely circumstantial,
but we generally draw no distinction between the probative
value of direct and circumstantial evidence. See United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
714 n.3 (1983). Moreover, because plaintiffs can rarely pro-
duce direct evidence that the government has disclosed confi-
dential information obtained from their private records, re-
quiring such evidence would eviscerate the protections of the
Privacy Act. Cf. Teleconnect Co. v. Ensrud, 55 F.3d 357, 360
(8th Cir. 1995) (rejecting ‘‘the notion that only a ‘smoking
gun’ will suffice to defeat a motion for summary judgment in
8
suits predicated upon asserted disclosures of confidential
information’’).
III.
Like his Privacy Act claim, Doe’s Rehabilitation Act claim
rests on his contention that a Postal Service employee im-
properly disclosed the contents of his FMLA form. The
Rehabilitation Act claim, however, requires an additional
showing: that the FMLA form amounted to an ‘‘inquiry’’ into
Doe’s medical condition within the meaning of ADA section
12112(d). 42 U.S.C. § 12112(d). Finding that Doe submitted
the form voluntarily and that he therefore failed to make this
showing, the district court granted summary judgment for
the Postal Service.
Defending the district court’s decision here, the Postal
Service relies on Cash v. Smith, 231 F.3d 1301 (11th Cir.
2000), an FMLA case in which the Eleventh Circuit rejected
the plaintiff’s confidentiality claim on the ground that section
12112(d) does not govern ‘‘voluntary disclosures initiated by
the employee.’’ Id. at 1307. The Postal Service, however,
ignores important factual differences between Cash and this
case. Though the plaintiff in Cash had submitted an FMLA
request, her disclosure of her medical diagnosis appears to
have had nothing to do with that request. Instead, she told
her boss ‘‘in confidence’’ about her diabetes well before she
asked for leave and ‘‘freely discussed her illness with other
TTT employees.’’ Id. at 1303–04, 1308. Here, in marked
contrast, Doe revealed his medical diagnosis to the Postal
Service only after the Service, through his direct supervisor,
told him in writing that he would face disciplinary proceed-
ings unless he completed either the FMLA form or a medical
certificate explaining ‘‘the nature of [his] illness.’’
Even if Doe can be said to have submitted the FMLA
request voluntarily, as the district court found and the Postal
Service now insists, that hardly means he volunteered his
medical diagnosis. The Postal Service conditioned Doe’s
receipt of FMLA leave on his submission of supporting
medical documentation, as the FMLA authorized it to do.
9
See 29 U.S.C. § 2613(a), (b)(3). It was thus the Postal
Service, acting pursuant to this statutory authorization, not
Doe, that initiated the inquiry into his medical condition by
asking for this medical certification.
It is true, as the Postal Service suggests, that Doe could
have avoided disclosing his medical condition by forgoing his
statutory entitlement to FMLA leave. If accepted, however,
that view would force employees to choose between waiving
their right to avoid being publicly identified as having a
disability and exercising their statutory rights––including the
rights to FMLA leave and to ‘‘reasonable accommodations’’
for their disabilities, see 42 U.S.C. § 12112(b)(5)(A)––that may
depend on disclosure of their medical conditions. Such a
result would run directly counter to Congress’s purpose in
enacting the ADA, which was, at least in part, to permit
employers to inquire into employees’ medical conditions in
order to provide reasonable accommodations, while avoiding
subjecting employees to the ‘‘blatant and subtle stigma’’ that
attaches to ‘‘being identified as disabled.’’ H.R. REP. NO. 101–
485, pt. 2, at 75 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
357–58; see also 29 C.F.R. pt. 1630 app. (section 12112(d) and
accompanying regulations ‘‘permit[ ] employers TTT to make
inquiries or require medical examinations necessary to the
reasonable accommodation process’’). Section 12112(d)’s con-
fidentiality requirement balances these two competing inter-
ests by ensuring that the information disclosed pursuant to an
employer’s medical inquiry spreads no farther than necessary
to satisfy the legitimate needs of both employer and employ-
ee. The Postal Service’s theory would destroy that balance,
returning employees to the very bind Congress sought to
avoid by enacting the confidentiality requirement.
Under the circumstances of this case, we think Doe’s
submission of the FMLA form was clearly a response to an
employer inquiry, and not a voluntary disclosure. According
to the Postal Service, however, section 12112(d) is neverthe-
less inapplicable because the FMLA form falls into neither of
the two categories of permissible employer inquiries subject
to section 12112(d)’s confidentiality requirement, 42 U.S.C.
§ 12112(d)(4)(C). Although we agree the FMLA form does
10
not constitute the first type of section 12112(d)(4)(B) inqui-
ry––it does not seek information in connection with a ‘‘volun-
tary medical examination[ ] TTT which [is] part of an employee
health program available to employees at that work site’’––
the form clearly falls within the second category, ‘‘inquiries
into the ability of an employee to perform job-related func-
tions.’’ 42 U.S.C. § 12112(d)(4)(B). The FMLA provides for
medical leave only when the applicant suffers from ‘‘a serious
health condition that makes the employee unable to perform
the functions of the position of such employee.’’ 29 U.S.C.
§ 2612(a)(1)(D). The FMLA certification form itself requires
health care providers to attest that the applicant suffers from
a ‘‘serious health condition’’ that has resulted in a period of
incapacity and notifies the certifying health care provider that
‘‘incapacity,’’ for purposes of the FMLA, means ‘‘inability to
work.’’ 29 C.F.R. pt. 825 app. B.
The Postal Service contends that the job-related functions
language does not apply to Doe’s FMLA form because the
Postal Service asked for medical certification to ascertain why
Doe was absent from work, not to determine whether he was
able to perform his job. Whatever the Postal Service’s
motive in seeking the information, however, it was trying to
determine whether Doe was ‘‘unable to perform the functions
of [his] position.’’ 29 U.S.C. § 2612(a)(1)(D). Section
12112(d)’s plain language requires the Postal Service to treat
Doe’s response to that inquiry as confidential.
IV.
The judgment of the district court is reversed and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.