EEOC Appeal 2020001606

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charlie K., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020001606
Agency No. 2003-0586-2020100122
DECISION
By letter received in an un-postmarked envelope on December 19, 2019, Complainant filed a
timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from
a final Agency decision (FAD) dated November 18, 2019, dismissing his 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 was a client in the Agency's
Compensated 	Work 	Therapy 	(CWT) 	Transitional 	Work 	Experience 	program, 	performing
warehouse stock clerk work at the G.V. "Sonny" Montgomery Veterans Affairs Medical Center in
Jackson, Mississippi.
On October 29, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency subjected him to discrimination and harassment based on his race (Black)
and disability when on October 3, 2019, his Vocational Rehabilitation Specialist/Case Manager:
1. 	Called him a "punk," and said, "[c]ome here nigga, we no longer need you anymore. You
are fired."
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.

2020001606	2
2. 	He was terminated from the Compensated Work Therapy (CWT) Transitional Work
Experience program.
The Agency dismissed the complaint for lack of standing, i.e., failure to state a claim because
CWT-Transitional Work participants are not employees. In support, the Agency cited 38 U.S.C.A.
§ 1718 and McCarty v. VA, EEOC Appeal No. 01994029 (Nov. 5, 1999).
The instant appeal followed. On appeal, Complainant reiterates the allegations in his EEO
complaint. In opposition to the appeal the Agency reiterates the finding in its FAD.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant’s complaint for
failure to state a claim because he was not a federal employee. EEOC Regulation 29 C.F.R.
§ 1614.103(a) provides that complaints of employment discrimination shall be processed in
accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c)
provides that within the covered departments, agencies and units, Part 1614 applies to all
employees and applicants for employment therewith.
United States Code 38 U.S.C. § 1718(a), which regards Veterans’ Benefits, provides that the
services of patients and members in certain health care facilities may be used for therapeutic and
rehabilitation purposes, and that these individuals shall not be considered as employees of the
United States for any purpose. In McCarty, the Commission found that the Agency represented
that the CWT program was authorized under 38 U.S.C. § 1718(a), and affirmed the dismissal of
the complainant’s EEO complaint alleging the Agency discriminated against him when it did not
select him for a CWT position for failure to state a claim. More recently, the Commission followed
McCarty in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120142458 (Jan.
13, 2015) (complainant’s EEO complaint that he was terminated from the CWT program position
of janitor failed to state a claim). Here, the Agency represents again that the CWT program is
authorized under 38 U.S.C. § 1718(a). Since Complainant does not dispute this, we conclude he
is not an employee of the Agency for the purposes of establishing standing to file an EEO
complaint under 29 C.F.R. Part 1614. Id.
Accordingly, the FAD is AFFIRMED.

2020001606	3
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.

2020001606	4
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 3, 2020
Date