Elsa R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 15, 2019

2019000104 (E.E.O.C. Feb. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elsa R.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Request No. 2019000104

Appeal No. 0120181165

Agency No. 200406882017104345

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120181165 (July 17, 2018). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In the underlying complaint, Complainant alleged that 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 its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1),
for failure to state a claim.

On appeal, the Commission affirmed the Agency’s dismissal, finding that the Agency properly
dismissed Complainant’s complaint for failure to state a claim because it raised a matter that is
outside the Commission's jurisdiction.

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.
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The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request
No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact
or law, or will have a substantial impact on the policies, practices, or operations of the Agency.

In her request for reconsideration, Complainant fails to address the central rationale of the previous
decision, i.e., that her complaint fails to state a claim under the Commission’s regulations. A
complaint is cognizable only if it is related to “a term, condition, or privilege of [complainant’s]
employment.” Here Complainant raises a claim that arises from her husband’s status as a veteran
and not from her status as an Agency employee or an applicant for employment with the Agency.
For that reason, the complaint must be dismissed. We find that Complainant’s arguments do not
demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact
or law or will have a substantial impact on the policies, practices, or operations of the agency.
Accordingly, we find that Complainant has failed to demonstrate that the Commission should
reconsider its appellate decision.

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120181165 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.
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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

February 15, 2019
Date