Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142458 Agency No. 2004-0590-2014101012 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 13, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND The record reflects that during the relevant period, Complainant participated in the Agency's Compensated Work Therapy program. He worked as a janitor at the Agency's Hampton, Virginia Medical Center (VAMC). On February 19, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of disability when: on November 1, 2013, he was terminated from the Compensated Work Therapy program at Hampton VAMC for allegedly threatening the safety of co-workers. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant was not a federal employee or applicant for federal employment and, therefore, lacked standing to file an EEO complaint. The instant appeal followed. ANALYSIS AND FINDINGS 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). EEOC Regulation 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. Thus, a complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government. The Agency argues that Complainant was not its employee, but a patient of the VAMC, who was being provided with a rehabilitation opportunity to work at the medical center under its Compensated Work Therapy (CWT) program. According to the Agency, the CWT program is statutorily authorized under 38 U.S.C. 1718(a), which specifies that patients in the agency's health care facilities may provide services for therapeutic and rehabilitative purposes, but "shall not under these circumstances be held or considered as employees of the United States for any purposes." The Agency also asserts that this Commission has ruled in the past that participants in the CWT program do not have standing to utilize the 29 C.F.R. Part 1614 EEO complaint process. On appeal, Complainant, through his attorney, argues that the EEOC case cited by the Agency in its dismissal decision does not support its determination that participants in the CWT program lack standing to file an EEO complaint under the 29 C.F.R. Part 1614 process. Rather, Complainant argues that the common law of agency test1 should be applied to determine whether Complainant was a de facto employee of the Agency. Complainant asserts he was because he received compensation from the Agency "in exchange for the janitorial work he performed for the Agency." As an initial matter, we note that the Agency cited to Duncan v. Department of Veterans Affairs, EEOC Appeal No. 01A24131 (August 6, 2003), in its dismissal decision in support of its determination that Complainant lacked standing as an employee of the Agency due to participation in the CWT program. However, the Agency's reliance on this case is misplaced, as the Commission never directly addressed the complainant's standing to file a complaint due to his participation in the CWT program in Duncan. The Agency acknowledges this in its appellate brief. However, on appeal, the Agency argues that the Commission nevertheless explicitly found that CWT workers are not federal employees for the purpose of maintaining an administrative EEO complaint in McCarthy v. Department of Veterans Affairs, EEOC Appeal No. 01994029 (November 5, 1999). We agree. In reaching this determination, McCarthy relied on the express language of 38 U.S.C. 1718(a), which specifies that the Agency may use the services of its patients "for therapeutic and rehabilitative purposes." The statute goes on to state, however, that such patients, "shall not under these circumstances be held or considered as employees of the United States for any purposes." The McCarthy decision concluded that this statutory language justified the dismissal for lack of standing ("failure to state a claim") of a complainant's claim that he was discriminatorily denied a CWT position. In the instant matter, Complainant does not dispute that his CWT position was authorized under 38 U.S.C. 1718(a). Accordingly, based on our prior precedent in the McCarthy case, we AFFIRM the Agency's dismissal of the instant complaint. 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 January 13, 2015 __________________ Date 1 See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142458 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142458 5 0120142458