01996217
08-11-2000
Tammy Lawrence, Victor M Lawrence, Complainants, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Tammy Lawrence, )
Victor M Lawrence, )
Complainants, )
)
v. ) Appeal Nos. 01996217
) 01996553
Janice R. Lachance, ) Agency Nos. 99-02
Director, ) 99-03
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
Tammy Lawrence (complainant-1) and Victor M. Lawrence (complainant-2)
filed separate class complaints against the Office of Personnel
Management (agency), alleging discrimination on behalf of physically
disabled (infertile) individuals in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Complainant-1 raised the basis of physical disability (infertility);
complainant-2 claimed discrimination on the basis of his association with
his disabled (infertile) wife, complainant-1. Both alleged harm from
the August 27, 1998 denial of Federal Employee Health Benefits (FEHB)
insurance coverage for in-vitro fertilization treatment. On May 5, 1999,
an EEOC Administrative Judge remanded the complaints for processing as
individual complaints, pursuant to a request from the complainants.<2>
The agency issued final decisions dismissing the complaints on July 8,
1999, and the complainants appealed to this Commission on August 6, 1999.
The Commission accepts the timely appeals for review, and consolidates the
cases pursuant to its discretion under 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter cited as 29 C.F.R. � 1614.606).<3>
In its final decisions, the agency dismissed both complaints for failure
to state a claim. Specifically, the agency found no documentary
evidence to support the claims. Also, the agency found no adverse
agency action from which the complainants could have been harmed.
In addition, the agency dismissed complaint-2 for failure to timely
file a formal complaint, noting that complainant-2 received his
notice-of-right-to-file-a-complaint on October 1, 1998, but failed to
file until October 21, 1998.
On appeal, both complainants argue, through their attorney, that a
lack of documentation should not justify dismissal.<4> They note that
the fertility clinic initially informed them that their treatment was
not covered by health insurance. Subsequently, a representative from
Blue Cross/Blue Shield, the complainants insurance carrier under the
FEHB program, informed them over the phone that in-vitro fertilization
treatment was not covered. The complainants note that they submitted
over fifty (50) pages of medical bills and insurance information with
their complaints, along with a letter to the agency asking that they
be informed if further information was required. They contend that the
agency, as the government entity responsible for administering FEHB plans,
is responsible for the Blue Cross/Blue Shield denial.
Complainant-2 also argues that his complaint (complaint-2) is timely.
According to complainant-2, he placed both complaints in the mail on
October 5, 1998. Complainant-2 contends that he called the agency to
ensure receipt of the complaints. After discovering that the agency
received complaint-1, but not complaint-2, he mailed another copy of
his complaint on October 21, 1998. He claims that the agency assured
him that complaint-2 would be considered timely. He also asserts that
an agency EEO official promised to place a memorandum in his file,
explaining that his complaint should be considered timely. Further,
complainant-2 notes that in a letter to the Commission dated November 20,
1998, the agency considered complaint-2 timely.
In response, the agency argues that infertility is not a recognized
disability under the Rehabilitation Act. The agency also contends
that the verbal statements of fertility clinic and Blue Cross/Blue
Shield employees do not constitute agency action. The agency asserts
that the complainants should have requested that the agency review the
benefit denial as provided for in 5 C.F.R. � 890, et seq. Absent such
a review, the agency claims that it should not be liable under the
Rehabilitation Act because it has not acted, and the complainants have
failed to exhaust their administrative remedies. Further, the agency
contends that it does not make decisions with regard to specific health
benefits; it notes that the FEHB Act established the minimum benefits
that must be covered. The agency notes that it does not prohibit plans
from covering reproductive services, except that it is required by law
to restrict coverage for abortions to limited circumstances.
With regard to complaint-2, the agency contends that complainant suffered
no harm as a result of his association with his spouse. The agency also
argues that his complaint is identical to complaint-1, and thus is a
duplicative waste of resources.
The record contains numerous documents from the fertility clinic where
both complainants received treatment, and claims statements from Blue
Cross/Blue Shield. These documents clearly show that numerous treatment
charges were not covered by the FEHB health plan. The record also includes
a letter from the agency, addressed to the Commission, dated November
20, 1998. This letter notes that complainant-1 filed her formal complaint
on October 9, 1998, and complainant-2 filed on October 13, 1998.
Attached to his October 21, 1998 formal complaint, complainant wrote
the following:
Pursuant to our conversation yesterday, I am now sending you another copy
of the complaint which I originally mailed to your office on October
5, 1998. I understand that you have agreed to consider this complaint
timely since it was clear that the original complaint must have been
lost in the mail, and that my wife's complaint which was post-marked
October 5, 1998, was mailed on the same day.
ANALYSIS AND FINDINGS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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).
EEOC Regulations provide for preemption of the complaint process where
a complainant chooses to pursue the same matter in other administrative
forums. See 29 C.F.R. � 1614.107(a)(4) (providing for the dismissal
of claims raised with the MSPB, or in certain grievance proceedings).
However, the regulations do not require a prerequisite process before
filing an informal complaint. To the contrary, the Commission has
refused to toll the time limits where a claimant attempted to use a
separate administrative process. See Volz v. Department of Justice, EEOC
Request No. 05950191 (July 12, 1996) (pursuing Freedom of Information Act
request does not necessarily toll time limit); Qualls v. Department of the
Navy, EEOC Request No. 05950273 (June 7, 1996) (using internal grievance
procedure through personnel office does not toll time limit); Schermerhorn
v. United States Postal Service, EEOC Request No. 05940729 (February 10,
1995) (pursuing union grievance does not toll EEO limitations period).
Therefore, the complainants failure to use the process set forth at 5
C.F.R. � 890 is not fatal to their claims.
The Commission has entertained several claims concerning the
discriminatory denial of health benefits, raised by the spouse of
the individual seeking treatment. See Heitner v. Office of Personnel
Management, EEOC Request No. 05970035 (July 23, 1998); Polifko v. Office
of Personnel Management, EEOC Request No. 05970769 (January 26, 1998).
In such cases, the Commission has found that the agency responsible
for administering the FEHB program is the proper defendant/agency.
See Heitner v. Office of Personnel Management, supra. The agency
administering the FEHB program (OPM), has been found responsible for
the insurance carrier's denial of benefits. See Polifko v. Office
of Personnel Management, supra. Further, whether a complainant is
actually disabled is a merits determination, not grounds for dismissal.
See Cummings v. Office of Personnel Management, EEOC Appeal No. 01A00726
(April 21, 2000) (reversing the agency's dismissal of a complaint alleging
the discriminatory denial of health benefits for infertility treatments).
Therefore, both complaint-1 and complaint-2 state a claim.
The agency may dismiss claims that fail to comply with applicable
time limits. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)). According to EEOC
Regulations, the complainant must file his formal complaint within
fifteen (15) days of receiving notice of the right to do so. See
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred to
as 29 C.F.R. � 1614.106). However, the time limit is subject to waiver,
equitable estoppel, and tolling. See 29 C.F.R. � 1614.604(c).
In the present case, complainant submitted an affidavit, and other
evidence indicating that his complaint was filed prior to October 21,
1998. Further, the record reveals that the agency considered the claim
filed on October 13, 1998, less than fifteen days after complainant-2
received the notice. Under these circumstances, it would be inequitable
to allow the agency to consider the complaint untimely. Accordingly,
the agency's dismissal of complaint-2 for untimeliness is improper.
Finally, the Commission notes that although both complaints state a claim
and are timely, they concern the same matter. The Commission agrees with
the agency that it would be a duplicative waste of resources for each
complaint to proceed independently. Therefore, the Commission finds
that complaint-1 and complaint-2 must be consolidated into a single
complaint for investigation.
CONCLUSION
Accordingly, the agency's dismissals of complaint-1 and complaint-2
are REVERSED, and the claims are REMANDED for consolidation and further
investigation.
ORDER
The agency is ORDERED to consolidate the claims into a single complaint
for investigation. The agency shall process the consolidated and remanded
complaint in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108).
The agency shall acknowledge to the complainants that it has received
and consolidated the remanded claims within thirty (30) calendar days
of the date this decision becomes final. The agency shall issue to
complainants a copy of the investigative file and also shall notify
complainants 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 complainants request a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainants' request.
A copy of the agency's letter of acknowledgment to complainants 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 (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R0400)
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 (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:
August 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1Complainants also filed a complaint on the same grounds
against their employer, the Equal Employment Opportunity Commission
(EEOC), currently pending on appeal. The Commission will address this
claim, EEOC Appeal No. 01997219, in a separate decision.
2The individual complaints of complainant-1 and complainant-2 shall be
referred to as complaint-1 (EEOC Appeal No. 01996217) and complaint-2
(EEOC Appeal No. 01996553), respectively.
3On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
4Complainant-1, complainant-2, and the agency submitted both timely
and untimely supplemental statements. The Commission will not address
or consider the arguments submitted beyond the time frames established
by regulation. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
as 29 C.F.R. � 1614.403(d)-(e)).