0520150212
05-13-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520150212
Appeal No. 0120133299
Agency No. ARDETRICK13MAR01928
DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120133299 (November 19, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
On June 28, 2013, Complainant filed the EEO complaint at issue herein. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of age (57) when:
1. on February 4, 2013, he was assessed 8 points prior to his annual physical which had a negative impact upon his physical examination results;
2. on or about February 4, 2013, he was forced to answer mental health and alcohol/drug screening questionnaires which were poorly written, ambiguous and leading; and
3. on or about February 2013, he was subjected to the Framingham Ten-Year Risk Assessment1 while other members of the Department of Emergency Services were not
subjected to the same assessment or the mental health and alcohol/drug screening questionnaires.
The Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding that Complainant was not aggrieved. Specifically, the Agency concluded that Complainant passed the physical and was not decertified from his position, so has not suffered a personal harm or loss.
In our prior decision, we determined that Complainant was trying to allege that the Agency improperly requested that he provide confidential medical information in both the Framingham Assessment and the mental health and alcohol/drug screening questionnaires. Framed as such, we concluded that the Agency improperly dismissed Complainant's complaint for failure to state a claim. Complainant had, in essence, alleged that he was subjected to an improper request for medical information in violation of 29 C.F.R. � 1630.13. We remanded the complaint to determine if the Agency's examination and inquiries violated the Rehabilitation Act.
In its request for reconsideration, the Agency essentially argues that it was not Complainant's intent to raise such a claim and that its examination and inquiries were not improper. Neither of these arguments meets either of the criteria set forth above. Nothing about the Agency's interpretation of Complainant's intent renders our conclusion about his intent "clearly erroneous." In addition, the determination as to whether the Framingham Assessment and the mental health and alcohol/drug screening questionnaires violated the Rehabilitation Act goes to the merits of the complaint, and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. Finally, in response to the Agency's argument that our holding is inconsistent with our decision in Complainant v. Department of the Army, EEOC Appeal No. 0120133323 (Feb. 11, 2013), we again disagree. The complainant in that case did not complain about improper medical inquiries. Rather, he solely complained about the application of the "Framingham scale," which automatically assessed him an additional eight points based on his age.
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. 0120133299 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 13, 2015
Date
1 A Framingham Risk Assessment is a process used to estimate various long-term health risks in individuals, such as coronary heart disease or cerebro-vascular events.
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0520150212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013