U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sol W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162859 Agency No. 200305492016103990 DECISION Complainant filed an appeal with this Commission from an Agency decision, dated August 29, 2016, pertaining to his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Peer Support Specialist at the Agency's North Texas Veterans Healthcare System facility in Dallas, Texas. Believing that he was subjected to discrimination on the bases of disability, age and in reprisal for prior protected EEO activity, Complainant filed an EEO complaint on July 20, 2016. Specifically, Complainant alleged: 1. On May 9, 2016 [Agency Dentist] denied Complainant dental work to "re-cement" his teeth because he was not 100% service connected veteran. 2. On May 9, 2016, [Agency Dentist] and [Chief, Dental Service] falsified an entry in Complainant's medical record. In its August 29, 2016 decision, the Agency dismissed the complaint for failure to state a claim. Regarding claim (1), the Agency reasoned that the denial of dental services is beyond the EEOC's jurisdiction. In turn, the remedy Complainant is seeking (i.e. "total reimbursement costs for dental repair by non-VA dental care") is outside of the Commission's purview. Similarly, in claim (2), Complainant's claims "related to medical information and Privacy Act violations" are also beyond the EEO process. Alternatively, the Agency stated that Complainant lacked standing to file a complaint, in that the events were unrelated to his employment with the Agency. Instead, Complainant was a VA patient challenging the denial of Veteran benefits. Lastly, the Agency considered the claims to be a collateral attack on VA proceedings for Veterans Services. ANALYSIS AND FINDINGS The regulation set forth at 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). According to Complainant, following an attack and robbery, while off-duty, Complainant went to the Agency's Emergency Room where he was then referred to the Dental Clinic. Following x-rays, the Agency dentist stated he could not provide dental care because Complainant was not 100% "Service Connected". In his formal complaint, Complainant seeks to be reimbursed for the dental care he received from a non-Agency dentist. We agree that the claims do not relate to a term, condition or privilege of Complainant's employment. The Agency's dismissal for failure to state a claim was proper.2 Based on a review of the instant record, we find that Complainant is challenging the denial of dental services and the purported falsification of medical records. CONCLUSION Accordingly, the Agency's decision was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 (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 November 23, 2016 __________________ Date 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. 2 In light of our disposition, we shall not determine whether the complaint was also properly dismissed on alternative grounds (i.e. lack of standing and collateral attack). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162859 2 0120162859