0120051222
10-16-2007
Cynthia C. Cummings, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Cynthia C. Cummings,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 01200512221
Agency No. 9920
DECISION
JURISDICTION
On November 22, 2004, complainant filed an appeal from the agency's
October 25, 2004 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Associate Counsel, GS-14, at the offices of the Defense Finance
and Accounting Service in Washington, D.C. Complainant states that
she was diagnosed with infertility in 1997. She also states that
her treating physician referred her to an infertility specialist who
started complainant on a series of drug treatments along with a regimen
of artificial insemination to address her infertility. At that time,
complainant received insurance through United Health Care of Ohio, Inc
(UHC). She claims that the insurance plan provided greater coverage
for non-infertility related prescriptions than for those she was
prescribed for her infertility. Additionally, complainant asserts
that the artificial insemination treatments she received were only
partially covered in that she had to pay for the cost of the donor sperm.
UHC did not provide coverage for fertility drug therapy or for in vitro
fertilization and other types of embryo transplant methods.
In December 1998, complainant changed her insurance plan to Anthem
Health Maintenance Plan (HMP). The plan covered 80% of the charges for
diagnosis and treatment of infertility. The plan covered the cost of
artificial insemination up to 80% and complainant was required to pay
50% of the costs for infertility drug treatments. HMP did not provide
any coverage for in vitro fertilization or embryo transfer procedures
and consequentially she did not submit to this treatment because it was
too costly. Ultimately, complainant states that she was unsuccessful
in her attempts to become pregnant.
In her complaint filed June 1, 1999, complainant alleged that the agency's
insurance contract discriminated against her on the bases of disability
(infertility) because:
1. drug treatments used to treat her infertility were given less favorable
insurance coverage than drugs for other conditions;
2. the insurance plan offered no coverage for in vitro fertilization and
embryo transplant procedures which discriminates based on the disability
of infertility;
3. the insurance plan offers less coverage for infertility treatments
in general than for other medical conditions.
Complainant seeks reimbursement for out-of-pocket costs for infertility
treatments not covered by the agency's insurance plan and non-pecuniary
damages for emotional distress.
FINAL AGENCY ACTION
In its final decision, the agency addressed complainant's renewed
request for class certification dated September 17, 2004 and to add a
claim of discrimination based on sex. The agency again concluded that
complainant's requests to amend should be denied as untimely because
the initial investigation was completed in 2000 whereas, her latest
request for class certification was raised four years later in 2004.
Moreover, the agency contends that it would be prejudiced by the delay
and the lack of notice since it has conducted its investigations solely
on the issue of discrimination on the basis of a disability. The agency
offers this same rationale for rejecting an amendment to add a claim of
sex discrimination.
Turning to the merits of the claim, the agency concluded that complainant
failed to establish she is an individual with a disability because she
submitted no medical documentation to support her claim that she is
infertile. The agency further found that complainant did not document
that she has any impairment, nor any evidence of the nature, extent and
severity of her impairment. Such documentation would demonstrate that
she is substantially limited in a major life activity of being able to
reproduce. Complainant having failed to adequately document her medical
condition, the agency found that she was not entitled to coverage under
the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency has already conceded
that the condition of infertility is a disability and that because she
has been diagnosed as infertile, she has demonstrated she is disabled
in the major life activity of being able to reproduce and is covered by
the law. Complainant argues that the agency does not need additional
medical documentation. On the other hand, complainant argues that she
has provided sufficient medical documentation of her condition.
Additionally, complainant maintains that the agency failed to justify its
disability based distinction with supporting data tending to show that
there is a legitimate risk based classification and that its coverage for
this condition is a subterfuge to discriminate. In response, the agency
reiterates many of the same points set forth in its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Procedural Issues
Pursuant to the Commission's order on remand, the agency conducted an
investigation and issued a final decision concluding that complainant's
claims were untimely raised. More specifically, the agency found that
complainant failed to contact an EEO counselor in a timely manner because
she knew as early as 1997 that her insurance provider did not extend
coverage for Artificial Reproductive Technology (ART) and provided
reduced coverage for other infertility treatments.2 The agency found
that complainant's first contact with an EEO counselor occurred on March
9, 1999 which was well after the 45 day time period set forth in EEOC's
regulations.
The Commission previously found that complainant's EEO counselor contact
was timely because at the time of her contact, the agency's insurance
plan excluded from coverage various forms of ART and provided only
partial coverage for fertility drug treatments.3 For that reason,
the Commission determined that the alleged discriminatory insurance
provisions were a present violation and therefore, her contact with an
EEO counselor was timely. Since that time, 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). In light of
the Supreme Court's decision, we will revisit the issue whether this
complaint was timely filed.
In the Supreme Court's decision in Morgan, the court considered whether
certain individual acts of alleged discrimination along with an allegedly
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 2077.4 The Commission concludes that
under Morgan, complainant's claim of discriminatory denial of insurance
benefits must be analyzed as a discrete act of discrimination.
First, the Commission finds that complainant's awareness of the agency's
insurance provisions was a discrete act which started the clock ticking
as to her claims of discriminatory coverage. Under our regulations
complaints of discrimination must be brought to the attention of the
EEO counselor within forty-five (45) days of the date of the matter
alleged to be discriminatory. 29 C.F.R. � 1614.105(a)(1). See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11,
1999)(the Commission applies a "reasonable suspicion" standard as opposed
to a "supportive facts" standard to determine when the forty-five (45)
day limitation period is triggered). According to the complaint,
complainant had a reasonable suspicion that the agency's insurance
coverage was discriminatory at least as of 1997 when she sought treatment
for her infertility and learned of the differences in benefits.
Complainant reported that she was aware during the time between 1997
and 1998, that UHC did not cover certain infertility treatments such as
fertility drug therapy and limited coverage for artificial insemination.
To the extent that she alleges UHC's coverage was discriminatory, her
claims are barred as untimely because she never sought EEO counseling
about that particular insurance policy. Complainant stated that she
changed her enrollment to HMP in December 1998 which provided some
coverage for infertility drug treatments. HMP, like UHC, did not provide
coverage for in vitro fertilization (IVF) methods. The record discloses
that complainant initially met with an EEO counselor in December 1998.
Based on these facts, the Commission finds that complainant's claim of
discrimination in HMP's provision of insurance coverage, was timely
raised because she sought EEO counseling within the regulatory time
period of 45 days.
The question may arise whether complainant established a specific harm
because she was not treated with IVF and incurred no out of pocket
loss related to an IVF procedure. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994)( in order to state a claim an
aggrieved individual must demonstrate she suffered a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy). The Commission finds that even though complainant did
not seek IVF under either plan, she has alleged a specific harm because
she claimed that HMP's failure to provide insurance coverage prevented
her from undertaking this treatment. As we stated above, complainant
timely raised her claim that HMP's less favorable insurance coverage for
infertility drug treatments was discriminatory since she first sought
EEO counseling in December 1998 and again in February and March 1999.
The record discloses that complainant was treated for infertility
between January and April 1999 and that HMP refused complainant's
request for a level of coverage equal to that for other conditions.
Therefore, her contact with an EEO counselor timely coincided with the
alleged discriminatory insurance coverage available for fertility drug
treatments.
Because the Commission did not specifically address complainant's request
to amend her complaint to add a claim of sex discrimination in its prior
decision, we will address it now. The Commission's regulations permit a
complainant to amend her complaint at any time prior to the completion
of the investigation, to add issues like or related to those raised
in the complaint. 29 C.F.R. �1614.106(d). Applying this standard,
the Commission concludes that the amendment must be denied. Notably,
complainant did not initially raise the issue in her complaint but
made her first request to amend her complaint in October 2001 after
the close of the investigation. The agency first notified complainant
it was investigating her claim on May 17, 2000. However, the agency
took additional time to complete a supplemental investigation which
it concluded on October 24, 2001, but complainant did not notify the
agency of her request to amend until October 31, 2001 several days after
the investigation ended. Therefore, the Commission concludes that the
agency was correct to deny complainant's request to amend.5
Complainant's Alleged Disability
We turn now to complainant's claim that the agency discriminated
against qualified individuals with the disability of infertility in the
manner in which it provided insurance coverage for this condition.6
As a threshold matter, complainant must first establish that she is
entitled to coverage under the Rehabilitation Act.7 Therefore, she
must establish that she is a qualified individual with a disability,
i.e., that she has a physical or mental impairment which substantially
limits her in a major life activity but that she is able to perform the
essential functions of her job with or without a reasonable accommodation.
29 C.F.R. �1630.2. A physiological disorder affecting the reproductive
system would constitute a physical impairment. 29 C.F.R. �1630.2(h)(1).
After a review of the record, which consists of the agency's initial
investigation and two supplemental investigations, the Commission
concludes that complainant failed to demonstrate she is an individual
with a disability as defined by the Rehabilitation Act. Complainant is
correct that the Supreme Court has ruled that the ability to reproduce is
a major life activity. Bragdon v. Abbott, 524 U.S. 624 (1998). It is
complainant's burden of proof to establish that she is an individual
with an impairment that substantially limits a major life activity.
Here, complainant's evidence consisted primarily of her own statements
asserting that she is infertile and that she has been diagnosed
as infertile. Complainant offered no corroborating evidence from her
primary treating physician and her infertility specialist and insufficient
evidence from other sources. Complainant failed to support her claim that
she has an impairment that prevents her from reproducing. Complainant
having failed to establish that she is covered by the Rehabilitation
Act, we need not determine whether the agency's insurance coverage
was discriminatory in the manner in which it treated the condition of
infertility.
CONCLUSION
The Commission concludes after a careful review of the record,
that complainant's claim of a discriminatory insurance contract (HMP)
against individuals with the condition of infertility was timely raised.
We conclude however, that complainant failed to establish she is an
individual with a disability as defined by the Rehabilitation Act.
Therefore, the agency's decision 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).
COMPLAINANT'S 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
__10-16-07________________
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 In Cummings v. Office of Personnel Management, EEOC Appeal No. 01A00726
(April 24, 2000), the Commission reversed the agency's dismissal of the
complaint for failure to state a claim on the grounds that whether or not
infertility is a disability is an issue on the merits of the complaint.
We remanded the matter to the agency for an investigation.
3 Cummings v. Office of Personnel Management, EEOC Appeal No. 01A22203
(May 13, 2004).
4 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.
5 The Commission need not address whether the agency was correct to
deny complainant's second request to amend the complaint for class
certification. The Commission already decided that the agency was
correct to deny a request for class certification because the request
was untimely filed. Cummings v. Office of Personnel Management, EEOC
Appeal No. 01A22203 (May 14, 2003). Therefore, the Commission will not
revisit this issue.
6 An employer will be liable for discrimination in any contract it
enters with an insurance company or health maintenance organization
which provides fringe benefits to employees. 42 U.S.C. � 2112(b)(2);
29 C.F.R. � 1630.6(b). The legislative history of the ADA indicates that
the prohibition against limiting, segregating or classifying an employee
on the basis of a disability includes employer provided health insurance.
Interim Enforcement Guidance on the Application of the Americans with
Disabilities Act of 1990 to Disability Based Distinctions in Employer
provided Health Insurance at 2.
7 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination.
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0120051222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120051222