Tammy Lawrence, Victor M Lawrence, Complainants,v.Janice R. Lachance, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionAug 11, 2000
01996217 (E.E.O.C. Aug. 11, 2000)

01996217

08-11-2000

Tammy Lawrence, Victor M Lawrence, Complainants, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.


Tammy Lawrence, )

Victor M Lawrence, )

Complainants, )

)

v. ) Appeal Nos. 01996217

) 01996553

Janice R. Lachance, ) Agency Nos. 99-02

Director, ) 99-03

Office of Personnel Management, )

Agency. )

____________________________________)

DECISION

Tammy Lawrence (complainant-1) and Victor M. Lawrence (complainant-2)

filed separate class complaints against the Office of Personnel

Management (agency), alleging discrimination on behalf of physically

disabled (infertile) individuals in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

Complainant-1 raised the basis of physical disability (infertility);

complainant-2 claimed discrimination on the basis of his association with

his disabled (infertile) wife, complainant-1. Both alleged harm from

the August 27, 1998 denial of Federal Employee Health Benefits (FEHB)

insurance coverage for in-vitro fertilization treatment. On May 5, 1999,

an EEOC Administrative Judge remanded the complaints for processing as

individual complaints, pursuant to a request from the complainants.<2>

The agency issued final decisions dismissing the complaints on July 8,

1999, and the complainants appealed to this Commission on August 6, 1999.

The Commission accepts the timely appeals for review, and consolidates the

cases pursuant to its discretion under 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter cited as 29 C.F.R. � 1614.606).<3>

In its final decisions, the agency dismissed both complaints for failure

to state a claim. Specifically, the agency found no documentary

evidence to support the claims. Also, the agency found no adverse

agency action from which the complainants could have been harmed.

In addition, the agency dismissed complaint-2 for failure to timely

file a formal complaint, noting that complainant-2 received his

notice-of-right-to-file-a-complaint on October 1, 1998, but failed to

file until October 21, 1998.

On appeal, both complainants argue, through their attorney, that a

lack of documentation should not justify dismissal.<4> They note that

the fertility clinic initially informed them that their treatment was

not covered by health insurance. Subsequently, a representative from

Blue Cross/Blue Shield, the complainants insurance carrier under the

FEHB program, informed them over the phone that in-vitro fertilization

treatment was not covered. The complainants note that they submitted

over fifty (50) pages of medical bills and insurance information with

their complaints, along with a letter to the agency asking that they

be informed if further information was required. They contend that the

agency, as the government entity responsible for administering FEHB plans,

is responsible for the Blue Cross/Blue Shield denial.

Complainant-2 also argues that his complaint (complaint-2) is timely.

According to complainant-2, he placed both complaints in the mail on

October 5, 1998. Complainant-2 contends that he called the agency to

ensure receipt of the complaints. After discovering that the agency

received complaint-1, but not complaint-2, he mailed another copy of

his complaint on October 21, 1998. He claims that the agency assured

him that complaint-2 would be considered timely. He also asserts that

an agency EEO official promised to place a memorandum in his file,

explaining that his complaint should be considered timely. Further,

complainant-2 notes that in a letter to the Commission dated November 20,

1998, the agency considered complaint-2 timely.

In response, the agency argues that infertility is not a recognized

disability under the Rehabilitation Act. The agency also contends

that the verbal statements of fertility clinic and Blue Cross/Blue

Shield employees do not constitute agency action. The agency asserts

that the complainants should have requested that the agency review the

benefit denial as provided for in 5 C.F.R. � 890, et seq. Absent such

a review, the agency claims that it should not be liable under the

Rehabilitation Act because it has not acted, and the complainants have

failed to exhaust their administrative remedies. Further, the agency

contends that it does not make decisions with regard to specific health

benefits; it notes that the FEHB Act established the minimum benefits

that must be covered. The agency notes that it does not prohibit plans

from covering reproductive services, except that it is required by law

to restrict coverage for abortions to limited circumstances.

With regard to complaint-2, the agency contends that complainant suffered

no harm as a result of his association with his spouse. The agency also

argues that his complaint is identical to complaint-1, and thus is a

duplicative waste of resources.

The record contains numerous documents from the fertility clinic where

both complainants received treatment, and claims statements from Blue

Cross/Blue Shield. These documents clearly show that numerous treatment

charges were not covered by the FEHB health plan. The record also includes

a letter from the agency, addressed to the Commission, dated November

20, 1998. This letter notes that complainant-1 filed her formal complaint

on October 9, 1998, and complainant-2 filed on October 13, 1998.

Attached to his October 21, 1998 formal complaint, complainant wrote

the following:

Pursuant to our conversation yesterday, I am now sending you another copy

of the complaint which I originally mailed to your office on October

5, 1998. I understand that you have agreed to consider this complaint

timely since it was clear that the original complaint must have been

lost in the mail, and that my wife's complaint which was post-marked

October 5, 1998, was mailed on the same day.

ANALYSIS AND FINDINGS

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).

EEOC Regulations provide for preemption of the complaint process where

a complainant chooses to pursue the same matter in other administrative

forums. See 29 C.F.R. � 1614.107(a)(4) (providing for the dismissal

of claims raised with the MSPB, or in certain grievance proceedings).

However, the regulations do not require a prerequisite process before

filing an informal complaint. To the contrary, the Commission has

refused to toll the time limits where a claimant attempted to use a

separate administrative process. See Volz v. Department of Justice, EEOC

Request No. 05950191 (July 12, 1996) (pursuing Freedom of Information Act

request does not necessarily toll time limit); Qualls v. Department of the

Navy, EEOC Request No. 05950273 (June 7, 1996) (using internal grievance

procedure through personnel office does not toll time limit); Schermerhorn

v. United States Postal Service, EEOC Request No. 05940729 (February 10,

1995) (pursuing union grievance does not toll EEO limitations period).

Therefore, the complainants failure to use the process set forth at 5

C.F.R. � 890 is not fatal to their claims.

The Commission has entertained several claims concerning the

discriminatory denial of health benefits, raised by the spouse of

the individual seeking treatment. See Heitner v. Office of Personnel

Management, EEOC Request No. 05970035 (July 23, 1998); Polifko v. Office

of Personnel Management, EEOC Request No. 05970769 (January 26, 1998).

In such cases, the Commission has found that the agency responsible

for administering the FEHB program is the proper defendant/agency.

See Heitner v. Office of Personnel Management, supra. The agency

administering the FEHB program (OPM), has been found responsible for

the insurance carrier's denial of benefits. See Polifko v. Office

of Personnel Management, supra. Further, whether a complainant is

actually disabled is a merits determination, not grounds for dismissal.

See Cummings v. Office of Personnel Management, EEOC Appeal No. 01A00726

(April 21, 2000) (reversing the agency's dismissal of a complaint alleging

the discriminatory denial of health benefits for infertility treatments).

Therefore, both complaint-1 and complaint-2 state a claim.

The agency may dismiss claims that fail to comply with applicable

time limits. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(2)). According to EEOC

Regulations, the complainant must file his formal complaint within

fifteen (15) days of receiving notice of the right to do so. See

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred to

as 29 C.F.R. � 1614.106). However, the time limit is subject to waiver,

equitable estoppel, and tolling. See 29 C.F.R. � 1614.604(c).

In the present case, complainant submitted an affidavit, and other

evidence indicating that his complaint was filed prior to October 21,

1998. Further, the record reveals that the agency considered the claim

filed on October 13, 1998, less than fifteen days after complainant-2

received the notice. Under these circumstances, it would be inequitable

to allow the agency to consider the complaint untimely. Accordingly,

the agency's dismissal of complaint-2 for untimeliness is improper.

Finally, the Commission notes that although both complaints state a claim

and are timely, they concern the same matter. The Commission agrees with

the agency that it would be a duplicative waste of resources for each

complaint to proceed independently. Therefore, the Commission finds

that complaint-1 and complaint-2 must be consolidated into a single

complaint for investigation.

CONCLUSION

Accordingly, the agency's dismissals of complaint-1 and complaint-2

are REVERSED, and the claims are REMANDED for consolidation and further

investigation.

ORDER

The agency is ORDERED to consolidate the claims into a single complaint

for investigation. The agency shall process the consolidated and remanded

complaint in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108).

The agency shall acknowledge to the complainants that it has received

and consolidated the remanded claims within thirty (30) calendar days

of the date this decision becomes final. The agency shall issue to

complainants a copy of the investigative file and also shall notify

complainants of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainants request a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainants' request.

A copy of the agency's letter of acknowledgment to complainants and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

August 11, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1Complainants also filed a complaint on the same grounds

against their employer, the Equal Employment Opportunity Commission

(EEOC), currently pending on appeal. The Commission will address this

claim, EEOC Appeal No. 01997219, in a separate decision.

2The individual complaints of complainant-1 and complainant-2 shall be

referred to as complaint-1 (EEOC Appeal No. 01996217) and complaint-2

(EEOC Appeal No. 01996553), respectively.

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.

4Complainant-1, complainant-2, and the agency submitted both timely

and untimely supplemental statements. The Commission will not address

or consider the arguments submitted beyond the time frames established

by regulation. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

as 29 C.F.R. � 1614.403(d)-(e)).