0120090309
04-09-2009
Kathy A. Kennedy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kathy A. Kennedy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090309
Agency No. 200I-0534-2006103808
Hearing No. 410-2007-00347X
DECISION
Complainant filed an appeal regarding 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. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of sex (female) and in reprisal for prior protected EEO activity
under Title VII when:
(1) Management "did not authorize the additional non-overtime hours"
that would have allowed her to attend CACHE training during the week of
September 18-22, 2006; and
(2) On September 25, 2006, she learned that male employees in the IT
service were provided off-site training "during the previous two year
period."
On February 1, 2007, the agency issued complainant a notice accepting
claim (1) for investigation and informing her that she had seven (7)
calendar days to disagree with the agency's notice if she felt that
the accepted claim was improperly formulated, incomplete, or incorrect.
The notice also informed complainant that she would be informed of her
appeal rights in the agency's final decision. Although the agency's
notice did not address whether or not the agency was accepting claim
(2), there is no evidence in the record that complainant contested the
content of the agency's formulation of her claim(s) in the February 1,
2007 notice.
Complainant's complaint was consolidated with Agency
No. 200I-0534-2007100405 for investigation. At the conclusion of
the investigation, which did not address claim (2), complainant was
provided with a copy of the report of investigation and a notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ assigned to the case
consolidated complainant's complaints with two other complaints and
held a hearing on April 29, 2008. Following the hearing, on April
29, 2008, the AJ issued a bench decision finding no discrimination on
all claims. Kennedy v. Department of Veterans Affairs, EEOC Hearing
No. 410-2007-00210X. The AJ's decision did not address claim (2).
On June 3, 2008, the agency issued a final decision that fully adopted
the AJ's decision and informed complainant of her appeal rights. On July
3, 2008, complainant appealed the agency's June 3, 2008 final decision.
The Commission subsequently affirmed the agency's determination that no
discrimination occurred. Kennedy v. Department of Veterans Affairs, EEOC
Appeal No. 0120083120 (December 24, 2008), request for reconsideration
denied, EEOC Request No. 0520090221 (February 20, 2009).
Sometime in June 2008, complainant submitted a request for a hearing on
claim (2) of the instant complaint, Agency No. 200I-0534-2006103808.
On July 25, 2008, the AJ issued an Order dismissing complainant's
complaint for failing to request a hearing in a timely manner. When the
agency failed to issue a final order within forty days of receipt of
the AJ's decision, the AJ's decision dismissing the complaint became
the agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, complainant argues that the AJ erred in dismissing her request
for a hearing on claim (2). Complainant further argues that the agency
was purposely attempting to "thwart the EEO process" by neglecting to
accept, reject, or adjudicate claim (2). The agency did not provide a
statement on appeal.
EEOC regulations state that an agency shall acknowledge receipt of a
complaint, or an amendment to a complaint, in writing; advise complainant
in the acknowledgment of the EEOC office and its address where a request
for a hearing shall be sent; advise complainant of her right to appeal
the final action on, or a dismissal of, her complaint; and conduct an
impartial and appropriate investigation. 29 C.F.R. � 1614.106(e).
The Commission generally has held that an agency may not rely on the
scope of an acceptance letter to avoid its obligation to explicitly
reject allegations that it is not accepting and to give the complainant
proper appeal rights. See Jayme v. Department of Justice, EEOC Appeal
No. 01941376 (May 18, 1995). However, although the agency's February 1,
2007 notice did not explicitly address claim (2), the record reflects that
the notice informed complainant of her right to object to the agency's
formulation of her claim(s), and she was informed of her appeal rights.
Since complainant neither objected to the agency's failure to accept
claim (2) for investigation nor provided sufficient evidence that she
objected to this in her previous appeal and request for reconsideration
of that complaint, we find that complainant failed to properly preserve
her right to challenge the agency's rejection of claim (2). Therefore,
complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 9, 2009
Date
2
0120090309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090309