Tammy Lawrence, Victor M Lawrence, Complainants,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01997219 (E.E.O.C. Jul. 27, 2000)

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.