01997219
07-27-2000
Tammy Lawrence, Victor M Lawrence, Complainants, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
Tammy Lawrence, Victor M Lawrence v. Equal Employment Opportunity Commission
01997219
July 27, 2000
Tammy Lawrence, )
Victor M Lawrence, )
Complainants, )
)
v. ) Appeal No. 01997219
) Agency No. 0-9900093-BA
Ida L. Castro, )
Chairwoman, )
Equal Employment Opportunity )
Commission, )
Agency. )
____________________________________)
DECISION
The complainants jointly filed a formal complaint alleging violations of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> In their complaint, the complainants alleged that they were
subjected to employment discrimination on the basis of physical disability
(infertility) when they were denied Federal Employee Health Benefits
(FEHB) insurance coverage for in-vitro fertilization treatments.<2>
On August 16, 1999, the agency issued a final decision dismissing the
complaint. The complainants appealed the final decision with this
Commission on September 9, 1999.<3> Their timely appeal is accepted
for review in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The agency's final decision dismissed the complaint for failure to state
a claim. Specifically, the agency found that the complainants do not have
recourse against their employing agency for claims concerning the denial
of insurance coverage for particular procedures. The agency noted that
such claims should be raised against the Office of Personnel Management
(OPM), the agency responsible for administering the FEHB program.
On appeal, the complainants argue, through their attorney, that
the agency, as their direct employer, is a necessary party to the
complaints against OPM. According to the complainants, the employing
agency maintains the ultimate authority over the terms and conditions of
their employment, and therefore necessarily is involved in any remedial
action resulting from their complaints. Complainants also contend that
where it is unclear which agency has the authority to grant relief,
the aggrieved may file EEO complaints with both agencies.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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 present case, OPM, not the agency, clearly has the authority to
grant the relief sought by the complainants (coverage of their infertility
treatments by the FEHB program). The Commission has found that OPM,
as administrator of the FEHB program, is the proper agency/defendant for
challenges to FEHB insurance coverage restrictions. See Heitner v. Office
of Personnel Management, EEOC Request No. 05970035 (July 23, 1998)
(noting in Department of Energy employee's claim, �[b]ecause . . . (OPM)
administers the . . . (FEHB) Program, OPM -- not the Department of Energy
-- was the proper party to this complaint.�); see also Polifko v. Office
of Personnel Management, EEOC Request No. 05940611 (January 4, 1995)
(noting the claim, concerning the denial of insurance benefits for a
Department of Justice employee �was properly transferred to [OPM].�)
Therefore, the agency's dismissal was proper.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 27, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution
of discrimination complaints. For purposes of this decision, the term
"Commission" or "EEOC is used when referring to the adjudicatory authority
and the term "agency" is used when referring to the respondent party in
this action. The Chairwoman has recused herself from participation in
this decision.
2The complainants filed separate complaints against the Office of
Personnel Management (OPM) concerning the same matter, also pending
on appeal. The Commission will address these complaints, EEOC Appeal
Nos. 01996217 and 01996553, in a separate decision.
3On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.