EEOC Appeal No. 0120142797
02-09-2015
Complainant v. Office of Pers. Mgmt.
Complainant,
v.
Katherine Archuleta,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120142797
Agency No. 2013027
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 1, 2014, dismissing a formal complaint of unlawful employment discrimination alleging a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as an External Communications Advisor at the Department of the Treasury.
On July 2, 2013, Complainant filed a formal EEO complaint alleging the Agency (Office of Personnel Management) subjected him to discrimination on the basis of his dependent daughter's disabilities (autism, cerebral palsy and seizure disorder) when:
beginning June 10, 2011 to present, Humana and CareFirst (insurance providers) denied Complainant coverage of claims for his daughter's dental treatments by out-of-network providers.1
On July 1, 2014, the Agency issued a final decision dismissing the formal complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that Complainant failed to state a viable claim because he failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment. The Agency noted that the Commission has held that individuals have standing to challenge health insurance plans administered by the Agency that are disability-based. The Agency found, however, that this formal complaint does not involve the insurance plan drawing a distinction based upon a particular medical condition or type of medical condition. Rather, the Agency argues that the benefits for out-of-network dental care are applied in the same manner to all covered individuals.
The instant appeal followed. On appeal, Complainant contends that other federal employees and their dependents are afforded access to appropriate dental coverage, but that his disabled daughter is not similarly afforded such access. Complainant argues that it was the intent of Congress to provide equal access to health treatment options regardless of disability. Complainant contends that because his daughter is disabled, he must bear the additional costs for her care because the Agency does not require insurance providers to provide the level of service she requires.
ANALYSIS AND FINDINGS
The regulation set forth at 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).
The Commission's regulations implementing the Rehabilitation Act's prohibition against employment discrimination provide that it is unlawful for an employer to discriminate on the basis of disability in regard to "[f]ring benefits available by virtue of employment, whether or not administered by the [employer]." 29 C.F.R. � 1630.4(a)(vi). Health insurance provided as part of federal employment is one of these fringe benefits. The regulations also provide that an employer may be liable for any disability discrimination that results from its contract with an insurance company to provide or administer a health insurance plan on behalf of its employees. 29 C.F.R. � 1630.6(b). In cases involving alleged discriminatory denial of health insurance benefits, the Commission has long held that the Agency (OPM), as the entity responsible for administering the Federal Employee Health Benefits program, is the proper party for an aggrieved employee to file an EEO complaint against for an insurance carrier's denial of benefits. Haendel v. Office of Personnel Management, EEOC Appeal No. 01963851 (May 1, 1997); Polifko v. Office of Personnel Management, EEOC Appeal No. 05940611 (January 4, 1995).
Pursuant to the Commission's Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer Provided Health Insurance, EEOC Notice No. 915.002 (June 8, 1993) ("Interim Guidance"), the first issue in the analysis of this type of claim of discrimination is whether the challenged term or provision of the employer-provided health insurance plan is, in fact, a "disability-based distinction." In its dismissal decision in this matter, the Agency contends that Complainant's claim does not involve a disability-based distinction and, therefore, fails to state a viable claim of discrimination. In reaching this conclusion, the Agency asserts that the distinctions drawn in Complainant's health insurance plan are broad, do not focus on particular medical conditions, and constrain both individuals with and without disabilities.
However, we determine that the Agency has addressed the merits of the instant complaint in a procedural dismissal, without a proper investigation as required by the regulations. See e.g., Cummings v. Office of Personnel Management, EEOC Appeal No. 01A00726 (April 24, 2000) (reversing the agency's dismissal of a complaint alleging the discriminatory denial of health benefits for infertility treatments). Evidence, rather than mere assertions, must be gathered concerning the actual provisions of the health insurance provisions at issue, and whether or not the distinctions drawn in this case are disability-based. If it is determined that the distinctions are disability-based, the Agency will be required to prove that the distinctions are not unlawful as detailed in 29 C.F.R. � 1630.16(f).
The Agency's final decision to dismiss the instant formal complaint for failure to state a claim is REVERSED. Complainant's complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
2/9/15
__________________
Date
1 Complainant alleges that, due to her disabilities, his daughter's dental care needs cannot be met by the coverage currently approved by the insurance providers. For example, Complainant explains that his daughter needs dental care provided under general anesthetic in a hospital setting and coverage for this care was denied.
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0120142797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013