01995238
02-23-2001
Margaret A. Howley, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Margaret A. Howley v. Department of Veterans Affairs
01995238
February 23, 2001
.
Margaret A. Howley,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995238
Agency No. 99-0626
DECISION
On June 18, 1999, complainant filed a timely appeal with this Commission
from an agency decision pertaining to 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant contacted the EEO office regarding claims of sexual
harassment. Specifically, complainant alleged that she was sexually
harassed on March 17, 1997, when a Recreation Therapist grabbed her around
the waist with one hand and fondled her right breast with the other hand.
The therapist also allegedly put his hand on her crotch and asked what
color bra she was wearing. Informal efforts to resolve complainant's
concerns were unsuccessful. On March 24, 1999, complainant filed a
formal complaint.
On May 21, 1999, the agency issued a decision dismissing the complaint for
failure to state a claim. The agency determined that during the relevant
time period complainant was not an employee or applicant for employment,
but rather an agency volunteer. The agency determined that complainant
did not have an employment contract with the agency and did not receive
remuneration or employment benefits. Noting that the Commission does
not have jurisdiction over volunteers unless there is a link between
volunteer work and regular employment, the agency further determined
that there was no connection between volunteering and employment at the
VA Medical and Regional Office Center in White River Junction, Vermont.
On appeal, complainant contends that she was the victim of sexual
harassment and she should be considered a �worker� by the agency.
Complainant argues that the volunteer orientation included information
on the agency's sexual harassment policy. She also argues that if
volunteers are not subject to and protected by such policies, there
would be no need for such training. Moreover, complainant notes that
the volunteer handbook states that volunteers are considered �employees�
and are eligible for workers' compensation benefits. According to
complainant, the volunteer training �leads unpaid employees to believe
they enjoy the protection of federal law.�
In response, the agency acknowledges that volunteers are considered
employees for the purpose of workers' compensation statutes, but argues
volunteers are not employees for the purposes of Title VII. In addition,
the agency disputes complainant's assertion that volunteers were misled
to believe they were covered by Title VII. The agency reiterates its
contention that the volunteer program was not a prerequisite to regular
employment and volunteers were not given preferential consideration
during the employment process. The agency concludes that complainant
is therefore not an employee or an applicant for employment and is not
covered by Title VII.
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).
Only in a narrow set of circumstances, usually where the volunteer is
performing services for the agency as part of an educational program
and received remuneration or where the volunteer service often leads to
regular employment, has the Commission held that a volunteer is protected
by Title VII. See Phillips v. Department of Veterans Affairs, EEOC
Appeal No. 01893011 (Sept. 13, 1989) (citing Pollack v. Rice University,
28 FEP Cases 1273 (S.D. Texas 1982)(court found that because service
for remuneration was incidental to scholastic program, plaintiff was a
student and not an employee). In the instant case, the agency contends
that there is no connection between volunteer work and regular employment.
The Commission determines that there is sufficient evidence of record
to support the agency's contention. Therefore, we find that the agency
properly dismissed the complaint for failure to state a claim.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.