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

Equal Employment Opportunity Commission

Sep 28, 2021

Appeal No. 2020000778 (E.E.O.C. Sep. 28, 2021)

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. Appeal No. 2020000778 Hearing No. 451-2015-00088X Agency No. DOS-F-106-12 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated October 23, 2019, concerning his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency’s final order. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant’s class complaint states a claim; and (2) whether Complainant’s individual complaint states a claim against the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant, a GS-1811-15 Assistant Special Agent in Charge working for the Department of Homeland Security, Immigration and Customs Enforcement (DHS/ICE) in Houston, Texas, was selected for a multi-year Department of Homeland Security Attaché position at the U.S. Embassy in New Delhi, India. According to the record, the assignment was for three to five years. 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. 2 2020000778 In order to work abroad, Complainant, and any Eligible Family Members (EFMs) who would live with him while he was working in India, were required to obtain a post-specific medical clearance or a waiver from the Agency’s Office of Medical Services (MED) in order to receive benefits under the Agency’s Medical Program. According to the record, the purpose of the medical clearance is to ensure that an individual’s medical needs can be met at the overseas post. Complainant sought medical clearance for his 12-year-old daughter (E1) to join him in New Delhi as an EFM. E1 has attention deficit hyperactivity disorder (ADHD). In a March 9, 2012, letter, E1’s psychiatrist (DR1) submitted a note, stating that he had treated E1 since July 28, 2011 for ADHD and obsessive-compulsive disorder (OCD), with her primary symptoms being anxiety, compulsive handwashing, and inattention. According to DR1, E1 was currently stable on her medications, and he recommended that she attend a regular school without special assistance. Complaint File at 169. Complainant also notified MED that E1 had been accepted to the American Embassy School in New Delhi for the upcoming school year and that he had found an Indian psychiatrist (DR2) who could care for E1 and manage her medications while in New Delhi. On March 28, 2012, the Regional Medical Officer in New Delhi (RM1) sent an email to Complainant, who had previously emailed RM1 about E1’s medical clearance and admission to the American Embassy School. RM1 noted that all medical clearance issues were handled exclusively by MED in Washington, D.C. RM1 also stated that clients were referred to DR2 for treatment “in complicated or specialized cases needing frequent visits or medication adjustments.” Complaint File at 181. RM1 concluded the email by stating: Although you’ve probably done this already, we urge all parents to fully disclose all relevant documents, evaluations, prior experiences with teachers, psychologists, schools, and therapists regarding school admission and illness to ensure proper fits for schools and posts. Unfortunately, my region has had several unfortunate cases of “bad fits” due to selective disclosures, leading to problems for all parties, unhappiness, and bad outcomes. Complaint File at 182. On April 9, 2012, Complainant was notified that the Agency’s Mental Health Service had determined that E1 was only eligible for a Class 5 domestic-only medical clearance. A Class 5 is issued when a person is not cleared for assignment abroad due to incapacitating conditions for which medical care is best obtained in the United States. On April 9, 2012, the Agency’s Director of Medical Clearances (MC1) emailed Complainant, stating that a consultant who made the decision “has significant concerns and has made her decision based on [E1’s] behavior despite the availability of educational support at post.” Complaint File at 209. MC1 informed Complainant that he could appeal the decision to a three-member Medical Review Panel. On April 24, 2012, Complainant appealed the denial of medical clearance for E1. In the appeal, Complainant stated that none of E1’s treating physicians attributed her compulsive handwashing during times of nervousness to germ avoidance. 3 2020000778 Complainant also reiterated that E1 has been accepted by the American Embassy School in New Delhi and that Complainant had located a local doctor, DR2, who would monitor E1’s prescription medications and provide any other needed medical services. Complainant submitted additional medical documentation. In an April 23, 2012 letter, DR1 stated that E1 displayed common symptoms of ADHD that were well managed with medication and that she should be able to live abroad if she received continued care from DR2. DR1 added, “[E1] does not display any aversion or phobia to germs. I only mention this fact as I was informed that a consultant had raised a previous concern during your medical clearance process and had reached a determination concerning my patient.” Complaint File at 163. The Medical Review Panel reviewed Complainant’s appeal. On April 30, 2012, the Medical Review Panel recommended a Class 5, Domestic Posting Only clearance for E1. The Medical Director concurred with the Medical Review Panel’s recommendation. The Agency’s Foreign Affairs Manual states that, where the Agency has not granted a medical clearance, the Human Capital Director of the employing agency can grant a medical waiver. Complainant requested a waiver from the DHS/ICE Human Capital Director (HC1) for E1. On June 19, 2012, HC1 denied Complainant’s request for a medical waiver for E1. In a June 11, 2012, email to a staffer, HC1 stated that granting a waiver over the objections of the Ambassador, after E1 had been denied medical clearance by the Agency’s Medical Review Board and RM1, could damage the relationship between DHS and the Agency. HC1 noted that, even if she granted a medical waiver, the Ambassador would have the authority to deny country clearance for E1. Complaint File at 192. After the denial of the medical waiver, DHS/ICE informed Complainant that his options were to: go to New Delhi by himself, and leave his family in the United States; or go to New Delhi with his family members who had been granted medical clearance by the Agency, and leave E1 with an authorized guardian in the United States. In either case, E1 would be able to visit Complainant in India, but she would not be able to stay long term without a medical clearance. According to the record, Complainant did not go to New Delhi. Procedural History On June 25, 2012, Complainant filed a formal class complaint alleging that 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. While the matter was pending before an EEOC Administrative Judge (AJ), on July 17, 2013, the Agency filed a motion to dismiss Complainant’s EEO complaint. Regarding the class component of Complainant’s complaint, the Agency argued that the class was vast and vaguely defined, as it would include employees and applicants from all federal agencies assigned to one of nearly 300 overseas posts who sought post-specific medical clearances for an eligible family member. 4 2020000778 The Agency further contended that the individualized decision making inherent in the medical clearance process was not 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. The Agency also argued that, as an individual EEO complaint, Complainant’s allegations failed to state a claim and should be dismissed. According to the Agency, Complainant, who was a DHS/ICE employee, did not allege the Agency engaged in an adverse employment action. The Agency concluded that the Agency’s determination that E1 could not participate in the Medical Program did not give rise to a claim of employment discrimination. On March 7, 2015, the AJ granted the Agency’s motion to dismiss. However, the AJ subsequently rescinded the March 7, 2015, order, reasoning that Complainant and his attorney representative had not been given an opportunity to respond to the Agency’s motion to dismiss. On April 6, 2015, the AJ issued an order reinstating Complainant’s hearing request and scheduling deadlines for resubmission of the Agency’s motion to dismiss and briefing by the parties.2 On April 30, 2015, the Agency filed a second motion to dismiss. The Agency again contended that Complainant failed to properly identify a class and that the putative class could not satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation. Additionally, the Agency noted that Complainant had filed a separate individual EEO complaint against his employer, DHS/ICE, based on the same facts as the instant complaint. In the Agency’s opinion, Complainant’s pending complaint against DHS/ICE, currently before a different AJ, was further reason that his instant individual complaint should be dismissed. On May 15, 2015, Complainant filed his opposition to the Agency’s motion to dismiss, which was also a motion for certification, or, in the alternative, a request for discovery prior to a class certification motion. Complainant stated that the class should be defined as follows: U.S. Government civilian employees and applicants for employment who, since April 6, 2012, suffered the U.S. Department of State’s denial of medical clearance to a family member, where the employees or applicants were consequently denied any U.S. Government international employment opportunity, including benefits typically afforded individuals selected by U.S. Government agencies for long-term posting abroad, e.g., the ability to be posted with family. Complaint File at 105-06. Complainant alleged that the denial of medical clearance for his daughter, E1, was based on stereotypes rather than E1’s actual medical information and the recommendations from E1’s treating physicians, noting that E1 thrived in a normal public school environment and had travelled to nine countries without incident. Complainant contended that, to the extent DHS/ICE was responsible for the alleged discrimination, the Agency would be jointly liable with DHS/ICE. 2 The AJ reinstated Complainant’s hearing request, which was originally Hearing No. 570-2012- 01017X, under a new docket number, Hearing No. 451-2015-00088X. 5 2020000778 Complainant also argued that his EEO complaint against DHS/ICE did not state the same claim as the instant matter. In a reply, the Agency argued that the AJ should dismiss the complaint not only for failure to state a claim and for failure to satisfy the elements of a class action claim, but also as an improper collateral attack on the Medical Program’s evaluation process and because Complainant lacks standing to challenge E1’s medical clearance. According to the Agency, Complainant is asking the AJ to second guess the Agency’s medical judgment, noting that the Agency is required by statute to set standards to support and protect government employees abroad with respect to their health care needs. On September 26, 2019, the AJ issued a decision granting the Agency’s motion to dismiss Complainant’s EEO complaint. The AJ found that Complainant could not proceed with a class complaint against the Agency because he is an employee of DHS/ICE, not the Agency, and 29 C.F.R. § 1614.204(a)(1) defines a class as “a group of employees, former employees or applicants for employment who, it is alleged, have been or are being adversely affected by an agency personnel management policy or practice that discriminates against the group” on a protected basis. The AJ also agreed with the Agency that the individualized decision making inherent in the medical clearance process was not amenable to class treatment. The AJ further concluded that Complainant’s individual complaint also failed to state a claim against the Agency and should be dismissed. On October 23, 2019, the Agency issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant’s Contentions on Appeal On appeal, Complainant contends that he stated an actionable claim of associational disability discrimination because he was denied relocation benefits based on E1’s disability. Complainant cites the Commission’s decision in Meyer v. Dep’t of State to support his contention that the Agency’s policy, of denying medical clearance without regard to accommodation and without any individualized assessment, has the effect of denying equal benefits of employment to federal employees associated with family members with disabilities. EEOC Appeal No. 0720110007 (June 6, 2014). According to Complainant, in E1’s case, the Agency relied on generalizations about individuals with disabilities, ignoring the statements by E1’s providers that she could live abroad, E1’s acceptance at the American Embassy School, and DR2’s statement that he could treat her while in New Delhi. Complainant contends that the AJ’s finding that Complainant could not file a complaint against the Agency because he worked for another federal agency ignores clear Commission precedent. Complainant maintains that, because the Agency bears sole responsibility for the medical clearance process, the Agency is responsible for the alleged discrimination. 6 2020000778 Complainant requests that the Commission reverse the final order fully implementing the dismissal of his EEO complaint and remand the matter for further processing. Agency’s Contentions on Appeal In response to Complainant’s appeal, the Agency contends that the AJ properly dismissed Complainant’s individual complaint because he was not employed by the Agency, but rather DHS/ICE, and the complaint did not allege that the Agency took an adverse action. Moreover, the Agency notes that Complainant did not appeal the final order fully implementing the finding of no discrimination in his EEO complaint against DHS/ICE, effectively abandoning his claim. According to the Agency, Complainant would be getting “two bites at the proverbial apple” if he could pursue his claims against the Agency and against DHS/ICE. Regarding the class complaint, the Agency argues that Complainant’s failure to state an individual complaint against the Agency forecloses his ability to proceed with a class complaint against the Agency. The Agency contends that the decision cited by Complainant, Meyer, is distinguishable because the class agent in that case was an applicant for employment with the Agency, whereas neither Complainant nor E1 was an applicant for employment with the Agency. The Agency asserts that Complainant also failed to establish numerosity, commonality, or typicality. ANALYSIS AND FINDINGS Dismissal of Complainant’s Class Complaint for Failure to State a Claim The AJ granted the Agency’s motion to dismiss Complainant’s class complaint, finding that Complainant failed to state a claim. 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). Therefore, we find that the instant class complaint fails to state a claim.3 Dismissal of Complainant’s Individual Complaint for Failure to State a Claim When class complaint is dismissed at the certification stage, the individual complaint may proceed if no other basis for dismissal applies. Here, the AJ also dismissed Complainant’s individual complaint for failure to state a claim against the Agency. 3 Because we find that the AJ properly dismissed the class complaint for failure to state a claim, we need not address whether the class complaint meets the certification requirements set forth in 29 C.F.R. § 1614.204(a)(2). 7 2020000778 The AJ appeared to reach this conclusion because Complainant was an employee of DHS/ICE, not the Agency. For the following reasons, we disagree that Complainant’s individual complaint fails to state a claim. 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, 1614.106(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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has adjudicated the merits of claims where complainants have alleged discrimination based on association with a person with a disability when denied Class 2 medical clearance for their Eligible Family Members. See, e.g., George M. v. Dep’t of State, EEOC Appeal No. 20190000987 (Sept. 22, 2020). We find that such a denial of Class 2 medical clearance for an EFM renders an individual “aggrieved.” However, it is undisputed that Complainant was not an employee of the Agency nor an applicant for a position with the Agency when the Agency denied medical clearance for his daughter, E1. Accordingly, we consider whether the Agency is, for purposes of the instant EEO complaint, an “offending party”. A federal employee or job applicant who believes a federal agency has discriminated against them has a right to file a complaint against that agency, regardless of whether the individual is a current employee of that agency. See 29 C.F.R. § 1614.106(a); see also Madelaine G. v. Dep’t of State, EEOC Request No. 0520170120 (Nov. 21, 2018); Gadson v. Dep’t of Treasury, EEOC Appeal No. 01972092 (Jan. 27, 2000). In Madelaine G., we found that, when the Agency denied complainant’s medical clearance, preventing her from returning to her position at the U.S. Embassy Kabul, Afghanistan, the Agency was liable for discrimination against the complainant even though she worked for the Department of Justice, Drug Enforcement Agency (DOJ/DEA).4 EEOC Request No. 0520170120. 4 We note that remedies may be affected in situations where a complainant is employed by an agency other than the agency found to have engaged in discrimination. For example, in Madelaine G., the Commission determined that it could not order the Agency to reinstate the complainant to her previously held position with the Department of Justice. Instead, the Agency was ordered to conduct an individualized assessment of complainant’s medical condition and inform the appropriate officials at her employer, DOJ/DEA, of her eligibility to return to her position at the Embassy in Kabul or a substantially similar assignment. The Commission also ordered the Agency to communicate with DOJ/DEA to determine the appropriate amount of back pay. EEOC Request No. 0520170120. 8 2020000778 Similarly, in the instant case, the Agency was responsible for the denial of Complainant’s Class 2 medical clearance for E1. Accordingly, we reverse the dismissal of this claim and remand it to the Agency for further processing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part, the Agency’s final order implementing the dismissal of Complainant’s class complaint. Regarding the dismissal of Complainant’s individual complaint, we REVERSE in part the Agency’s final order. The individual complaint is REMANDED to the Agency for further processing. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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). 9 2020000778 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 10 2020000778 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 11 2020000778 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 September 28, 2021 Date