Martine L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

2019003065 (E.E.O.C. Sep. 17, 2019)

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

Martine L.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019003065

Agency No. 200P-0345-2018901442

DECISION

On April 8, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 21, 2019,
dismissing her complaint of unlawful 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant, as a Veteran, was a beneficiary
under Title 38 in the form of being a participant in the Agency's Chapter 31 Vocational
Rehabilitation and Employment (VR&E) program at the Veterans Affairs Regional Office, VR&E
Division in Phoenix, Arizona.

On January 14, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency discriminated against her based on race (African-American), sex
(female), disability, and reprisal for prior protected EEO activity under Title VII when:

1. On March 7, 2017, her Agency Vocational Rehabilitation Counselor and other Agency
officials took the word of a White man that she was at fault in an altercation without first
asking her side of the story;

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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2. On March 8, 2017, she was terminated from the VR&E program due to conflicts with staff,
and instead offered the opportunity to stay on as an unpaid volunteer if people in the
Community Based Work Experience segment of the VR&E program would allow it.

As a VR&E program participant, Complainant agreed to a Rehabilitation Plan with the objectives,
in order of (1) participating in an extended evaluation to assess the feasibility for successful
vocational outcome and ability to participate in vocational rehabilitation services, (2) maintaining
her stability and overall health, and (3) completing a Community Based Work Experience.
Services included referral as needed for medical care and case management. Evaluation criteria
included complying with scheduled appointments, exams, treatment recommendations, and
medications and counseling/therapy, as prescribed. The Agency provided Complainant a monthly
subsistence allowance of $605.44 for participating in training specified in her Rehabilitation Plan,
which was variable depending on her taking course(s) and the number of her dependents.

Citing Commission precedent, the Agency dismissed the complaint for failure to state a claim
because Complainant was the beneficiary of Chapter 31 rehabilitation program – an unpaid
volunteer trainee, not an employee.

On appeal, Complainant argues she was an employee because she received a subsistence allowance
and was enrolled in a Community Base Work Experience, and not a volunteer.

ANALYSIS AND FINDINGS

The Commission has repeatedly found that participants in the Agency’s Chapter 31 VR&E
program as part their Title 38 benefits are beneficiaries, not employees of the Agency. Hammett
v. Veterans Affairs, EEOC Appeal No. 01A44933 (Nov. 16, 2004) (claim regarding complainant
being terminated from Chapter 31 training position failed to state a claim); West v. Veterans
Affairs, EEOC Appeal No. 01A45819 (Feb. 23, 2005) (claim regarding not being selected to
participate in a Chapter 31 VR&E work-study program failed to state a claim); Shabazz v. Veterans
Affairs, EEOC Appeal No. 0120071625 (May 18, 2007) (claim regarding not being selected to
participate in a Chapter 31 VR&E work-study program failed to state a claim).

While Complainant received a subsistence allowance, this was not compensation for work. For
example, it was variable depending on whether Complainant stayed in her class(es) and the number
of her dependents, and was subject payment even before a participant was placed in Community
Based Work Experience segment of the program. We agree with the Agency that Complainant was
the beneficiary of the VR&E program, not an employee.

Accordingly, the FAD is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
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.
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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.
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

September 17, 2019
Date