0120160890
04-12-2016
Israel F.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Israel F.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160890
Agency No. ARDETRICK15JUL02616
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 23, 2015, 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 September 25, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of age when:
on June 1, 2015, he underwent a mandatory medical evaluation where the Occupational Health Nurse and Occupational Health doctor used the Framingham Risk Factor Scale, which uses age as a risk factor, to assess his cardiovascular health.
Complainant alleged that he was improperly assessed 13% on his annual physical by the Occupational Health nurse based on his Framingham scale because of his age when his actual Framingham score was 8% when assessed by the Occupational Health medical doctor. Complainant further alleged that due to the Occupational Health nurse's miscalculation of the Framingham and inquiring "if I was having any chest pain and if I was having chest pain to go to the hospital. Her statement and the use of Framingham scale to calculate my risk factor caused undo stress to me and my family until I was cleared by the Doctor."
In its November 23, 2015 final decision, the Agency dismissed the 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 examinations and was not decertified from his position, and challenged an Agency regulation that applies to all employees in his occupational series, so he has not suffered a personal harm or loss.
The instant appeal followed.
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 case, we find that Complainant does not allege it is improper to require annual physical examinations for Police Officers, but rather than the Framingham scale was used as part of the examination. Following his examinations by the Occupational Health nurse and Occupational Health medical doctor, Complainant passed the examinations. Essentially, Complainant states that he was put at a disadvantage by the Occupational Health nurse's miscalculations of the Framingham scale. However, this disadvantage appears to be speculative in light of the undisputed facts that he passed his physical examinations and no adverse action was taken against him. Therefore, we find that the Agency properly dismissed the formal complaint for failure to state a claim.
The Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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 12, 2016
__________________
Date
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.
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