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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 Whitman–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, Assistant 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 requirement, 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 agencies 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 discriminating on the basis of disability, also forbids such em-
3

ployers from disclosing employees’ private medical records,

incorporating by reference the medical examination confidentiality 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 maintenance worker at the United States Postal Service’s Brentwood facility in Washington, D.C., missed several weeks of

work in March and April 1998 while suffering from an AIDSrelated 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 Department of Labor Form WH 380, the FMLA medical certification 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 reasons 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 complaint 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 certification 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, concluding 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. United 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 ‘‘safeguard[ ] the public from unwarranted TTT dissemination of

personal information contained in agency records,’’ the Privacy 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 statutory 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 exceptions. It claims only that Doe has offered insufficient evidence that a Postal Service employee (1) disclosed information about Doe’s medical condition that (2) the employee had

retrieved from Doe’s FMLA certification form. In considering 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 reasonable 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 action––that a Postal Service official disclosed confidential medical information––Doe points to record evidence indicating that

his management-level supervisor, Melvin Tahir, told coworkers about his HIV status. Specifically, one of Doe’s coworkers 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 coworkers 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 condition, 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 inference that USPS supervisors became aware of Plaintiff’s condition 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 information 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 supervisor 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 forwarded such medical documentation to the employee’s manager or supervisor ‘‘as necessary.’’

As the Postal Service points out, a second Duchesne declaration, 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 managers 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) (‘‘Summary judgment is inappropriate when contradictory inferences 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 submitting, 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 produce direct evidence that the government has disclosed confidential information obtained from their private records, requiring 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 improperly 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 proceedings 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 confidentiality requirement balances these two competing interests 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 employee. 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 nevertheless 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) inquiry––it does not seek information in connection with a ‘‘voluntary 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 functions.’’ 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.