[Redacted], Elroy K., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2020000778 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elroy K.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Request No. 2022000417 Appeal No. 2020000778 Hearing No. 451-2015-00088X Agency No. DOS-F-106-12 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020000778 (September 28, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as an Assistant Special Agent-in-Charge, GS- 1811-15, for the Department of Homeland Security, Immigration and Customs Enforcement (DHS/ICE) in Houston, Texas. He was selected for a multi-year Department of Homeland Security Attaché position at the U.S. Embassy in New Delhi, India. Upon selection, Complainant was required to obtain a post-specific medical clearance or waiver from the Agency’s Office of Medical Services for himself and any Eligible Family Members who would be accompanying him in India, in order to receive benefits under the Agency’s Medical Program. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000417 2 Complainant sought a medical clearance for his daughter. The Agency’s Mental Health Service determined that she was only eligible for a Class 5 domestic-only medical clearance and denied her medical clearance for the post in India. Complainant appealed the matter to the Medical Review Panel and was also denied a medical waiver. DHS/ICE informed Complainant that he could go to New Delhi by himself or go with the other family members who had been granted medical clearance and leave his daughter with an authorized guardian. Complainant filed a formal class complaint, claiming the Agency subjected a class of individuals to discrimination on the basis of disability (association with a person with a disability) when they were denied government employment opportunities abroad when the Agency denied medical clearances to their Eligible Family Members, based on disabilities, perceived disabilities, and/or records of disabilities. Complainant requested a hearing. The matter was assigned to an EEOC Administrative Judge (AJ). Over Complainant’s objections, the AJ issued a decision denying certification of the class complaint. The AJ further concluded that Complainant’s individual complaint also failed to state a claim against the Agency because he was not employed by the Agency. The Agency issued a final order implementing the AJ’s decision and dismissed both the class and individual complaints. Complainant appealed. In EEOC Appeal No. 2020000778, the Commission agreed that the class complaint was properly dismissed and concluded: Upon review, we agree with the AJ that the class complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant, as putative class agent, has named one individual in the purported class, himself. This does not constitute a “class,” which is defined as a “group of employees, former employees or applicants for employment.” 29 C.F.R. § 1614.204(a)(1). Complainant has failed to identify any other person who was affected by the same Agency actions, so his class complaint fails to state a claim. See Maxwell, et al., v. Dep’t of Air Force, EEOC Appeal No. 01A33545 (Dec. 10, 2004) (class complaint where class agent identified herself as the only member of the class failed to state a claim). However, the Commission disagreed with the AJ’s determination that Complainant’s individual claim also failed to state a claim. In so doing, the Commission found that a denial of a medical clearance for an Eligible Family Member renders an individual “aggrieved.” The Commission also noted that, while Complainant was not an employee of the Agency or an applicant for a position of the Agency, he was a federal employee and the Agency was responsible for the denial of the medical clearance that impacted his employment opportunities. The dismissal of the individual claim was reversed, and the matter remanded to the Agency for further processing. 2022000417 3 In the instant request for consideration, Complainant argues that the decision to dismiss the class claim was erroneous. Complainant now argues that there are sufficient numbers to sustain a class complaint because, as the Agency has acknowledged in legal filings in the case of another EEO complainant that in 2016, it issued 28,775 medical clearances, of which more than 10,000 involved Eligible Family Members, applicants and employees of other agencies. Complainant argues that the Commission should provisionally certify the class so that the parties may engage in discovery or, alternatively, find that the matter states a viable class claim and remand the matter to the AJ to allow for pre-certification discovery. We have carefully reviewed Complainant’s arguments and determine that the matters either were raised or could have been raised below. While Complainant now argues that a significant number of medical clearances were considered by the Agency in 2016, the events at issue in his case occurred in 2012. Moreover, Complainant does not present evidence to indicate how many of the medical clearances considered in 2016 resulted in denials concerning family members. Most significantly, he does not adequately address the argument that the individualized decision- making inherent in the medical clearance process, which considers an extremely wide range of medical conditions and over 300 foreign postings, may not be amenable to class treatment and that, even if Complainant reframed his complaint, he would not be able to establish questions of fact common to the class. During the original appeal from the Agency’s final order, Complainant presented extensive arguments, many of which have been replicated in the instant request. We emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020000778 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency must now comply with the following Order. ORDER To the extent it has not already done so, the Agency is ORDERED to process the remanded individual complaint in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded individual complaint within thirty (30) calendar days of the date this decision was issued. 2022000417 4 The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: (1) a copy of the Agency’s letter of acknowledgment to Complainant; (2) a copy of the Agency’s notice that transmits the investigative file and notice of rights; and (3) either a copy of Complainant’s request for a hearing, a copy of Complainant’s request for a FAD, or a statement from the Agency that it did not receive a response from Complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022000417 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 20, 2022 Date