0120181165
07-17-2018
Elsa R.,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
Elsa R.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181165
Agency No. 2004-0688-2017104345
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 22, 2018, dismissing her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker at an Agency Medical Center in Washington, DC.
On November 6, 2017, Complainant filed a formal complaint alleging the Agency discriminated against her and her husband based on disability (infertility) and sex (of husband, male) when it delayed and denied her In Vitro Fertilization (IVF) treatments as part of her husband's veterans' healthcare benefits.
In a decision, dated January 22, 2018, the Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that
Complainant's claim constituted a collateral attack on the external Title VI2 process, which would cover healthcare and benefits for veterans.3 The instant appeal from Complainant followed.
On appeal, Complainant stated that she initially filed a complaint alleging that the Agency subjected her to discrimination on the bases of race (Black), national origin (African), sex (female), and disability (carbon monoxide poisoning) when it denied her reasonable accommodation (relocation or reassignment) after she was consistently exposed to carbon monoxide in the workplace. Complainant identified that allegation as Part 1 and stated that matter did not fail to state a claim in the 29 C.F.R. Part 1614 EEO complaint process. Complainant also argues that her claim regarding the IVF treatments, which she identifies as Part 2, cannot be a "collateral attack" because she did not file a complaint in the external Title VI process.
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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As an initial matter, we find there is no need to address Complainant's allegation of discrimination based on reasonable accommodation (relocation or reassignment) because this claim is already being processed by the Agency as a separate complaint. Therefore, the only matter relevant in the instant appeal is the dismissal of the claim relating to the delay and denial of IVF treatments.
Following a review of the record, the Commission finds that the Agency properly dismissed Complainant's complaint for failure to state a claim because it raises a matter that is outside the Commission's jurisdiction. Complainant alleged that the Department of Veterans Affairs' healthcare benefits program for veterans delayed and denied her IVF treatments. The Commission finds that the complaint fails to state a claim under EEOC regulations because Complainant failed to allege that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz, supra. We note that Complainant is not making claim about the health insurance coverage provided to her by virtue of Agency employment. See Complainant v. Office of Personnel Management, EEOC 0120142797 (February 9, 2015).
We AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
July 17, 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.
2 Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000d et seq., provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
3 The record contains a memo, dated June 28, 2018, from the Agency's Office of Resolution Management to its Veterans Health Administration, requesting processing under the Title VI External Civil Rights Complaint Program.
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