0120182232
09-14-2018
Clemente M,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clemente M,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182232
Agency No. 200H-0757-2018101493
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 25, 2018, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
The record indicates that during the relevant period at issue, Complainant was a volunteer for the National Association of Black Veterans (NABV), a veteran service organization (VSO), at the Agency's Chalmers P. Wylie VA Ambulatory Care Center facility in Columbus, Ohio.
On March 26, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race and in reprisal for prior EEO activity.
In it May 25, 2018 final decision, the Agency determined that the formal complaint was comprised of several alleged incidents of harassment occurring from August 2016 through April 2018.
The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant was not a federal employee or applicant for federal employment and, therefore, lacked standing to file an EEO complaint.
The instant appeal followed. Complainant has not submitted any statements or briefs in support of his appeal.
ANALYSIS AND FINDINGS
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).
EEOC Regulation 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. Thus, a complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government.
The Agency properly dismissed the formal complaint for failure to state a claim. Here, the record indicates that Complainant is neither an employee or applicant. Our review of the EEO Counselor's report and formal complaint indicates that Complainant does not identify himself as an employee, former employee, or applicant. Documentation in the record, including the EEO Counselor's initial contact form and the Report of Contact, identifies Complainant as a volunteer for NABV, a non-paid VSO representative, and a volunteer without compensation whose responsibilities were limited to assisting veterans with initial claim filing only due to Complainant's non-paid status.
We note that Complainant's volunteer work in the instant case does not fall within the Commission's narrow exceptions to the general rule that EEOC regulations only protect employees or applicants for employment. 29 C.F.R. � 1614.103. We have extended Title VII protection where (1) volunteer work would regularly lead to employment with an agency and (2) where the employer provides a volunteer with benefits that constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship." See Jarvis M. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152722 (Dec. 17, 2015) (citing Phillips v. Dep't of Veteran Affairs, EEOC Appeal No. 01893011 (Sept. 12, 1989); see also EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-III(A)(1)(c) (Aug. 6, 2009) citing Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993) (reversing summary judgement where a volunteer firefighter received significant benefits that included pension, insurance, tuition reimbursement, ect.)
Here, there is no indication in the record that Complainant's volunteer work would lead to employment with the Agency. Complainant's volunteer responsibilities were limited in scope because Complainant's non-paid volunteer status prevented him from assisting veterans through the entire claim process. Additionally, Complainant was not an Agency volunteer. Instead, Complainant was a volunteer for a veteran service organization, NABV, assisting veterans located in the Agency's facility. Finally, there is no evidence that Complainant received any reimbursement benefits from the Agency for his volunteer work. Complainant's volunteer work in the instant cases does not qualify for an extension of Title VII protection. Therefore, we find that Complainant lacks standing to advance his claims through the federal sector EEO process because the record supports that Complainant is neither a federal employee or applicant.
Accordingly, we AFFIRM the Agency's dismissal of the instant complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__September 14, 2018________________
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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