0120131759
06-20-2013
Marva L. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Marva L. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120131759
Agency No. 200P06642013100733
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 31, 2013, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an Applicant at the Agency's San Diego VA Medical Center in San Diego, CA. On December 11, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Not Specified), national origin (Not Specified), sex (female), and disability (Not Specified) when:
1. Medical professionals and Agency personnel allegedly cooperated in a clandestine operation with members of the Catholic clergy to cover-up a sex scandal in the Roman Catholic Church;
2. The Agency allegedly colluded with the University of California in criminal solicitation;
3. The Agency employed corpsmen from the United States Navy and their affiliates or contractors to provide unequal medical treatment to an underprivileged class of patients;
4. An unnamed individual from the Chaplain's office from the Department of Veteran Affairs persistently followed and telephoned Complainant while she was participating in a transitional housing program affiliated with the Agency;
5. The Agency did not intervene in the corrupt business practices of the pharmaceutical industry;
6. On February 20, 2010, the Agency transferred Complainant's relative, a patient, to the University of San Diego Medical Center;
7. The Agency denied appropriated medical intervention for persons affected by chemicals used to produce "Agent Orange";
8. The Agency allegedly used covert operatives to protect trade secrets of manufacturers of deleterious drugs and chemicals known to cause harm to humans, such as D.E.S. and Agent Orange (dioxin);
9. The Agency performed invasive research on Complainant without her consent while she was employed by the University of California at San Diego;
10. An unnamed individual struck Complainant's car after she attempted to file a complaint with the U.S. Marine Corps;and
11. The Agency denied medical support, genetic testing resources and behavioral health intervention to veterans and their offspring, and failed to disseminate information to veterans and their offspring regarding effects of shell shock, post-concussive head syndrome and chemical and biological agents that could cause "genetic effects."
The Agency dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds that access to medical or other veteran services are not within the purview of EEOC jurisdiction and also for failing to show a relationship between the claims and Complainant's applications for employment with the Agency. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to state a claim under �1614.103(a).
EEOC Regulation 29 C.F.R. �1614.103(a) covers individual and class complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of disability) or the Equal Pay Act (sex-based wage discrimination). Complaints alleging retaliation are also considered to be complaints of discrimination. In addition, the U.S. Supreme Court has held that an employee is aggrieved, or in other words has standing to file a complaint, when some personal loss or harm has been suffered with respect to a term, condition, or privilege of employment. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).
Here, the Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant's complaint states allegations of criminal activity and discrimination regarding access to medical and other veteran services, allegations which are beyond the scope of EEOC jurisdiction as provided in 29 C.F.R. �1614. Furthermore, Complainant's complaint does not arise from or show a relationship to her applications for employment with the Agency.
Accordingly, the Agency's final decision dismissing Complainant's complaint for failure to state a claim is AFFIRMED.
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 (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.
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
June 20, 2013
Date
2
0120131759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131759