Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120133299 Agency No. ARDETRICK13MAR01928 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 14, 2013, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Police Officer at the Agency's Department of Emergency Services in Fort Detrick, Maryland. On June 28, 2013, Complainant filed the instant formal complaint. 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. The instant appeal followed. On appeal, Complainant argues that when the Agency physician was interviewed by the EEO investigator she was asked if the Framingham Assessment was unique at Fort Detrick or "was it used Army wide for all Police Officers. Her response was 'it's Army wide, the guidance comes from Medcom.' Then when I informed the EEO investigator that that statement was not true, because the Officers from Forest Glen, who are part of our department, were not subject to the Framingham assessment. The EEO investigator then re-interviewed [a named Agency physician] along with [a named Agency official]. When asked about the Forest Glen officers, their stories changed and they stated that they knew but that they could not regulate standards for another Occupational Health Clinic. They were clearly changing their story." Finally, Complainant argues that the entire physical process "needs to be re-evaluated. The forms and Questionnaires need to be DOD approved and make sense, and everyone should be on an even scale. The Framingham Risk Assessment is absolutely discriminatory against the older officers and works in favor of the younger officers. This practice is wrong." ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In the instant matter, Complainant is alleging 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) because of his age that it did not request of other similarly situated employees. Framed as such, we conclude that the Agency improperly dismissed Complainant's formal complaint for failure to state a claim. Complainant has, in essence, alleged that he was subjected to an improper request for medical information in violation of 29 C.F.R. § 1630.13(b). The Agency's assertions that the assessment at issue does not constitute an improper request for medical information goes to the merits of Complainant's complaint and is not relevant to the procedural issue of whether Complainant has set forth an actionable claim. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996). Accordingly, we REVERSE the Agency's dismissal of the instant complaint for failure to state a claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 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 November 19, 2014 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133299 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120133299 6 0120133299