0120033969_0120033970
09-26-2007
Amy Cochran-Barta & Mark B. Barta, Complainants, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Amy Cochran-Barta &
Mark B. Barta,
Complainants,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal Nos. 0120033969 &
01200339701
Agency Nos. 00-27, 98-33
DECISION
Complainants filed timely appeals with this Commission from the agency's
decision dated May 21, 2003. The cases were consolidated during prior
proceedings before an EEOC Administrative Judge and will be resolved
jointly in this decision. The complaints allege unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
specifically that the agency's health insurance plan discriminated
against individuals diagnosed with infertility.
The Commission previously decided that these complaints were timely
because the alleged discriminatory insurance coverage was, at the time
of the contact with an EEO counselor, a "present violation" and we
remanded the matter to the agency for an investigation. Cochran-Barta
et. al v. Office of Personnel Management, EEOC Appeal No. 01A11253
(May 9, 2002). As the Commission instructed, the agency conducted an
investigation and at complainants' request, it issued a final decision
without a hearing.2 The agency determined, among other things, that
both complaints should be dismissed for untimely contact with an EEO
counselor under 29 C.F.R. � 1614.105(a)(1). More specifically, the
agency found that complainant, Amy Cochran-Barta (AB) admitted that she
became aware of the agency's allegedly discriminatory insurance coverage
for infertility treatments in 1994, but she did not seek EEO counseling
until March 2000. Similarly, the agency found that complainant Mark
Barta (MB) did not seek counseling for his EEO claim until June 1998,
more than four and a half years after first learning of the insurance
coverage for infertility treatments. The agency concluded that, under
the reasonable suspicion standard, the complainants both knew of the
alleged discriminatory insurance coverage, but waited long past the
regulatory time period for making timely contact with an EEO counselor.
The agency rejected complainants' claims that they delayed contacting an
EEO counselor because they were unaware that the agency was responsible
for the content of the insurance plan.3
The agency further found that complainants failed to establish that the
allegedly discriminatory insurance coverage was a continuing violation
because they did not show there was a series of related discriminatory
acts, one of which occurred within the 45 day time period for contacting
an EEO counselor. FAD at 23. Even assuming that complainants had shown
that there were a series of discriminatory acts, the agency concluded
that they failed to contact an EEO counselor within 45 days of learning of
the new insurance terms at the start of each new contract year.4 For the
contracts in question, the agency found that complainants would have had
the new benefits brochure by January 1, 1998 or alternatively, January
1, 2000, but neither contacted an EEO counselor within the required 45
day period. For these reasons, the agency concluded that the complaints
should be dismissed.
On appeal from the agency's final decision, complainants contend that
there was no set date for the agency's discriminatory conduct because it
was continuous since at least 1993 when they started trying to conceive
a child. Letter dated June 24, 1998 from MB's Report of Investigation,
Exhibit 2 at 11. MB argued that the agency's discrimination was
continuous with each contract that it entered into and that there was
no singular, discrete act which triggered the 45 day period. MB also
relayed that they had reviewed the agency's plan provisions and were
aware that though some coverage for infertility treatments was available,
the more state-of-the-art treatments such as Gamete Intra-fallopian Tube
Transfer (GIFT) a type of embryo transplant method, were not covered.
ANALYSIS AND FINDINGS
We will address the agency's conclusion that complainants' claims are
untimely in light of a recent Supreme Court ruling which is applicable to
this case.5 In the Commission's previous decision, we determined that the
complaints were timely filed because complainants' claim of discriminatory
insurance coverage was a present violation. We reasoned that since the
agency did not dispute that it would have refused reimbursement of a
claim for benefits for infertility treatments (in vitro fertilization
and other Assisted Reproductive Technology (ART) methods) regardless of
when it was presented, complainants' claim represented a current harm
to a term or condition of their employment. Cochran-Barta, supra.
Additionally, in cases involving a present violation, also termed a
continuing violation, at least one incident in a series of incidents
must have occurred within the statutory limitations period to render
the claim timely. See e.g. Abernathy v. Department of Veterans Affairs,
EEOC Appeal No. 01994960 (December 21, 2001).
Subsequent to the Commission's decision, the Supreme Court issued its
decision setting forth a framework for analyzing the timeliness of
multiple claims of discrimination. See National Railroad Passenger
Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002)(Morgan). The court's
decision considered whether certain individual acts of alleged
discrimination along with an alleged racially hostile work environment
were timely raised under a continuing violation theory. The Court
held that "discrete discriminatory incidents are not actionable if
time barred, even when they are related to acts alleged in timely filed
charges." Id. at 2072. The court defined discrete acts as specific events
like termination or promotion, which are separate, actionable, unlawful
employment practices. Id. Each discrete discriminatory act starts
a new clock for filing a claim alleging that act. Id. Any untimely
related but discrete acts may be used as background evidence in support
of a timely claim, but are not separately actionable and no recovery
is available for them. Id. In contrast, in a claim of hostile work
environment, the court held that the entire scope of conduct may be
considered and liability will attach, so long as any act contributing
to the hostile environment falls within the limitations period. Id. at
2077.6 Our review of the record leads us to conclude that under Morgan,
complainants' claims of discriminatory denial of insurance benefits must
be analyzed as a discrete act of discrimination.
Because the denial of complainants' insurance coverage was a discrete
act, we find that the date that the complainants became aware of the
agency's alleged discriminatory insurance coverage and were harmed by
it, is the operative date for purposes of determining the timeliness
of their claims. The complainants were required to take action within
the applicable time period for bringing a claim. In terms of the
timeliness of complainants' claims, the Commission's regulations require
complaints of discrimination to be brought to the attention of an Equal
Employment Opportunity Counselor within forty-five (45) days of the date
of the matter alleged to be discriminatory or the claim is time barred.
29 C.F.R. � 1614.105(a)(1). This means that complainants must have
brought their claims to the attention of the agency's EEO office within
45 days of the date they learned of the agency's insurance coverage for
fertility treatments and were harmed, i.e., denied recovery of benefits,
by the agency's action.
According to the record, AB recalled that she was first diagnosed with
infertility in 1994 and that she became aware that the agency's insurance
plan was discriminatory in 1994. Her affidavit confirmed that as she
received treatments, certain procedures were not covered from time to
time, but she did not contact an EEO counselor until several years later
in March 2000. ROI (AB) Exhibit 7, tab 2. The Commission finds that AB's
failure to raise the claim within 45 days of the date she suspected the
insurance denial was discriminatory renders her claim untimely.
Presuming that MB learned of the alleged discriminatory insurance
provisions at the same time as AB, the record reflects that his
first contact with an EEO counselor did not occur until June 1998.
MB's complaint, filed in July 1998, indicated that he and AB had incurred
$25,000.00 in out of pocket expenses by that time and that they had long
suspected that the insurance denial was discriminatory. The Commission
finds that his failure to act in a timely manner also bars his complaint
from consideration.
The Commission's regulations allow for the time limits to be extended
under certain circumstances such as when individuals show that they were
not notified of the time limits and were not otherwise aware of them,
that they did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence they were prevented by circumstances beyond their control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. 29 C.F.R.�
1614.105.
Complainants claim that they were not aware that OPM was responsible for
negotiating the content of their insurance plan provisions until learning
of the Commission's ruling that OPM was the proper party in interest.
Polifko v. Office of Personnel Management, EEOC Appeal No. 01960976 (April
3, 1997).7 We note however, that there is no record that complainants
made any effort to challenge what they viewed as discriminatory conduct
over a three to four year period.8 In this regard, we note that had
the complainants timely contacted an EEO counselor at their respective
agencies regarding their claims, they would most likely have been informed
that OPM was the proper party in interest. Thus, we are not persuaded
that this presents an adequate justification for why the time limitation
period should be extended in this case. We find that complainants'
claims were not timely raised in accordance with our regulations and
the complaints should be dismissed.
CONCLUSION
For the foregoing reasons, and based on the evidence of record, the
Commission concludes that the agency's final decision dismissing the
complaints as untimely is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANTS' 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
__9/26/07________________
Date
1 Due to a new data system, these cases have been re-designated with
the above-referenced appeal number.
2 The record discloses that complainants initially requested a hearing
before an EEOC Administrative Judge but withdrew their request and asked
for a final agency decision.
3 Complainants were employed, respectively by the Defense and Accounting
Service, Department of Defense, and the U.S. Postal Service at the time
of filing the complaints.
4 According to the record, the agency annually issues a "call letter" to
participating insurance carriers with initiatives such as "family-centered
care" and "Patients' Bill of Rights."
5 The Commission has previously held that where an agency does not raise
timeliness as a basis for dismissal in its final decision, it waives
the ability to argue timeliness on appeal. See Brown v. Department
of Justice, EEOC Appeal No. 0120045121 (December 20, 2006); McGrady
v. Health and Human Services, EEOC Appeal No. 01985084 (September 4,
2001). In this case, however, the agency has consistently argued, both
in its final decisions and on appeal, that the complainants' claims are
untimely.
6 The court declined to rule on cases involving "pattern and practice"
claims such as those involving a discriminatory salary structure as in
Bazemore v. Friday, 478 U.S. 385 (1986). Id. at 2073.
7 There is no indication when the parties first learned about this
decision and whether they sought EEO counseling within 45 days of their
discovery.
8 The Commission has held that complainants must act with due diligence in
the pursuit of their claims or the doctrine of laches, an equitable remedy
under which an individual's failure to act diligently could bar his/her
claim, could be applied. See Walker v. Department of the Treasury,
EEOC Request No. 05960679 (December 12, 1997); O'Dell v. Department of
Health and Human Services, EEOC Request No. 05901130 (December 27, 1990).
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0120033969
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120033969
0120033970