                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
RANDOLPH S. KOCH,                   )
                                    )
               Plaintiff,           )
                                    )
        v.                          )               Civil Action No. 10-0150 (PLF)
                                    )
MARY JO WHITE,                      )
Chair, Securities and Exchange      )
Commission,                         )
                                    )
               Defendant. 1         )
___________________________________ )


                                 MEMORANDUM OPINION

             This employment discrimination matter is before the Court on defendant’s renewed

motion for summary judgment. Defendant Securities and Exchange Commission filed this

motion on August 1, 2013. On October 9, 2013, the Court issued an Order pursuant to Fox v.

Strickland, 837 F.2d 507 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992),

directing plaintiff Randolph Koch to respond to defendant’s motion by November 6, 2013, and

informing him of the risks of failing to respond. See Fox/Neal Order. Mr. Koch has not

responded or filed a motion seeking an extension of time.

              In these circumstances, the Court may treat the defendant’s motion as conceded.

D.D.C. LOC. CIV. R. 7(b); see also Fox v. American Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C.

Cir. 2004). The Court also has considered the substance of the motion for summary judgment,




       1
              The Court has substituted Chair Mary Jo White in place of former Chair Mary L.
Schapiro pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
and after careful consideration of the motion and the relevant case law and statutes, concludes

that the motion should be granted. 2


                                       I. BACKGROUND

               Randolph S. Koch is a former employee of the SEC. Compl. ¶ 4. In his amended

complaint, Koch alleges that an employee of the SEC, a disability coordinator supervisor named

Carol Hallowell, disclosed to the Office of the Inspector General (“OIG”) Koch’s confidential

medical information. Am. Compl. ¶ 44. Koch further alleges that OIG investigators viewed

work emails containing his confidential medical information. Id. ¶ 45. Koch asserts that these

alleged intra-agency actions violate the confidentiality provisions of the Rehabilitation Act. Id.

¶ 44(b). 3 He further alleges that this unlawful disclosure of confidential medical information

caused him embarrassment and distress. Id. ¶¶ 47-48. The defendant has moved for summary

judgment on the grounds that there was no unauthorized disclosure, and that, even if there were,

such disclosure did not result in any cognizable injury. Def.’s Mot. 2-4.


       2
               The papers reviewed in connection with this motion include: plaintiff’s first
complaint (“Compl.”) [Dkt. No. 1]; Opinion and Order of March 30, 2013 (“Dismissal Op. &
Order”) [Dkt. No. 35, 36]; plaintiff’s amended complaint (“Am. Compl.”) [Dkt. No. 39];
defendant’s renewed motion for summary judgment (“Def.’s Mot.”) [Dkt. No. 45]; defendant’s
statement of undisputed material facts (“Def.’s SMF”) [Dkt. No. 45]; and the Court’s Order of
October 9, 2013 (“Fox/Neal Order”) [Dkt. No. 46].
       3
                Koch’s first complaint contained allegations for violations of the Rehabilitation
Act, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of
1967. This Court dismissed Koch’s first complaint in a Memorandum Opinion and Order dated
March 30, 2013. Dismissal Op. & Order. The dismissal was without prejudice with respect to
Koch’s claim relating to violations of the Rehabilitation Act’s confidentiality requirements.
Koch was granted leave to file an amended complaint as to the sole remaining claim in order to
show any injury in fact, and he subsequently filed a new complaint on June 11, 2013. See
generally Am. Compl. Although Koch’s complaint alleges two causes of action, including a
renewed retaliation claim, the Court considers only his confidentiality claim, as Koch’s
retaliation claim previously was dismissed with prejudice. See Dismissal Order 1-2. Insofar as
Koch asserts that the alleged disclosure led to unlawful discrimination, the Court considers this
allegation as falling within the scope of Koch’s previously dismissed claims.
                                                 2
                                     II. LEGAL STANDARD

               Summary judgment may be granted under Rule 56 if the moving party

demonstrates that there is no genuine dispute as to any material fact, and that they are entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). “A fact is ‘material’ if a dispute over it

might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or

unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d

889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Issues are considered “genuine” if, given the evidence, “a reasonable jury could return a verdict

for the nonmoving party.” Koch v. Schapiro, 697 F. Supp. 2d 65, 68-69 (D.D.C. 2010). In

considering a motion for summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. at 255.

              While Koch is proceeding pro se in this case, the Court notes that Koch is a lawyer,

see Koch v. Walter, 935 F. Supp. 2d 164, 169-70 (D.D.C. 2013), and an active litigant who has

considerable experience pursuing employment discrimination matters. Nevertheless, the Court

reviews his filings under “less stringent standards than formal pleadings [or legal briefs] drafted

by lawyers.” Chandler v. W.E. Welch & Associates, Inc., 533 F. Supp. 2d 94, 102 (D.D.C.

2008) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).


                                      III. DISCUSSION

               Koch argues that the defendant’s actions constitute violations of the

confidentiality provisions of the Americans with Disabilities Act (“ADA”), as incorporated into

the Rehabilitation Act. Am. Compl. ¶ 46. The confidentiality provision of the ADA, 42 U.S.C.

§ 12112(d), restricts an employer’s authority to require medical examinations or make health-


                                                  3
related inquiries of its employees, and it provides that information obtained regarding an

employee’s medical history must be treated as confidential, with certain exceptions. 42 U.S.C.

§ 12112(d)(3), (4); see also 29 C.F.R. §1630.14(d) (echoing language of the statute). 4 As noted,

Koch alleges that the SEC violated this provision on two occasions.

                First, Koch alleges that the OIG reviewed certain emails that he sent from his

work account containing confidential medical information, and that this review constituted an

unauthorized disclosure under the Rehabilitation Act. Am. Compl. ¶¶ 45-46. It is undisputed

that the OIG investigated Koch’s time and attendance records and, during its investigation,

reviewed all of Koch’s work emails from April through June 2008. Def.’s Mot. 27; Def.’s SMF

¶¶ 5-7. It also is undisputed that one of the emails reviewed was a request for reasonable

accommodations, with supporting documentation from Koch’s physician. Def.’s Mot. 27; Def.’s

SMF ¶¶ 5-7.

                The defendant asserts, and Koch has not contested, that the review of Koch’s

work email account was authorized under the Inspector General Act of 1978, which grants broad

authority to the OIG to access “all records, reports, audits, reviews, documents, papers,

recommendations, or other material available” to the relevant agency. See 5 U.S.C. app. 3

§ 6(a)(1). The Court does not see how the OIG’s incidental access, while performing a lawful

search, in connection with a lawful investigation, to one work email containing Koch’s medical

information constitutes an unauthorized disclosure by the agency under the Rehabilitation Act.

The Court has located no legal authorities that would suggest otherwise, and, as noted, Koch has

failed to file an opposition brief to contest this point.




        4
               29 U.S.C. § 791(g) and 794(d) incorporate provisions of the ADA into the
Rehabilitation Act.
                                                    4
               Second, Koch alleges that Hallowell unlawfully disclosed Koch’s confidential

medical information to the OIG during a deposition taken during the OIG’s investigation. Am.

Compl. ¶ 44. The defendant has provided persuasive evidence that the only medical information

disclosed by Hallowell was the fact that Koch had sought an accommodation request to

participate in a cardiac rehabilitation program. Def.’s SMF ¶¶ 2-4; Def.’s Mot., Ex. A, Tab A at

15-16, 32. Because Hallowell was unsure as to whether she could share Koch’s medical

information, she did not provide further specifics. Def.’s Mot., Ex. A, Tab A at 15-16. Koch

alleges that this disclosure by Hallowell resulted in embarrassment and distress.

               Assuming arguendo that the disclosure of this information was prohibited by the

Rehabilitation Act, Koch has provided no evidence that such disclosure caused him

embarrassment and distress, and the Court finds Koch’s allegation of emotional harm

implausible. Years before Hallowell’s deposition in August 2008, Koch publicly disclosed this

same information – i.e., his participation in a cardiac rehabilitation program – in public court

filings. See Koch v. Cox, Civil Action No. 02-1492 (relating to SEC’s alleged failure to

accommodate Koch’s participation in cardiac rehabilitation program); Koch v. Cox, 489 F.3d

384, 386 (D.C. Cir. 2007) (discussing allegations that the SEC’s refusal to accommodate Koch

prevented him from participating in a “medically-supervised cardiac rehabilitation program

prescribed by his cardiologist”); see also Koch v. White, --- F.3d ----, 2014 WL 888436, at *1

(D.C. Cir. 2014) (“After Randolph Koch took a stress test in 2007, his cardiologist recommended

that Koch enter a cardiac rehabilitation program.”). Under these circumstances, Koch cannot

credibly assert that the disclosure of this same information during a deposition in 2008 caused

him emotional harm.




                                                 5
              For the foregoing reasons, the Court will grant defendant’s motion for summary

judgment. An Order consistent with this Memorandum Opinion shall issue this same day.

              SO ORDERED.




                                                         /s/__________________________
                                                         PAUL L. FRIEDMAN
DATE: March 31, 2014                                     United States District Judge




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