01a50228
03-29-2005
Lisa M. McAdoo, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Lisa M. McAdoo v. Department of Justice
01A50228
03/29/05
.
Lisa M. McAdoo,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A50228
Agency No. P20030286
Hearing No. 170-2004-00304X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
I. BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Recreation Specialist GS-09/09 at the agency's Federal Detention
Center in Philadelphia, PA. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 10, 2003, alleging
that she was discriminated against on the basis of sexual orientation
and reprisal for prior EEO activity when on May 8, 2003 management denied
complainant's request for approval of outside employment.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination. The AJ concluded that the complaint failed to
state a claim because sexual orientation is not a basis of discrimination
prohibited by Title VII.
II. STANDARD OF REVIEW
An AJ may dismiss a complaint for failure to state a claim. 29 C.F.R. �
1614.109(b). The Commission reviews the AJ's dismissal de novo.
III. ANALYSIS
After a careful review of the record, we find that the AJ correctly
dismissed complainant's allegation of sexual orientation discrimination
for failure to state a claim. The AJ failed to address complainant's
retaliation claim. We find that complainant failed to state a judiciable
claim in that regard as well.
The AJ correctly dismissed complainant's claim of sexual orientation
discrimination because sexual orientation is not a basis of discrimination
protected by the Commission. Yost v. United States Postal Serv., EEOC
Request No. 05970940 (October 2, 1997).
The record, however, reveals that complainant claimed discrimination on
two bases, sexual orientation and reprisal, marking them on her request
for counseling and her formal complaint. See Request for Counseling,
Complainant's MEMORANDUM TO SHOW CAUSE, Exhibit A; see also Formal
Complaint, Report of Investigation (ROI), Exhibit 1. The agency,
furthermore, acknowledged that complainant claimed both these bases
in its acknowledgment of receipt of the complaint, ROI, Ex. 3 at 2,
and in the statement of the issues to be investigated, ROI, Ex. 4.
The AJ's decision only addressed complainant's claim of discrimination
based on sexual orientation and did not address complainant's claim of
reprisal discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), we find that complainant's allegation
of reprisal also fails to state a claim. The agency is prohibited from
retaliating against complainant for her opposition to any practice
otherwise made unlawful by the statutes enforced by the Commission.
29 C.F.R. � 1614.101(b). The record reveals that complaint claimed
she was the victim of unlawful retaliation when her supervisor rejected
her request for outside employment because she reported him for having
questioned her about her sexual orientation. Because sexual orientation
is not a basis of discrimination against which the Commission protects,
complainant is not protected by the Commission from retaliation on
that basis. Her complaint, therefore, does not state a judiciable claim.
cf. Leary v. Department of the Navy, EEOC Petition No. 03920075 (February
19, 1993) (stating that an allegation of retaliation for union activity
not involving discrimination fails to state a claim of retaliation);
cf. Wardleigh v. Department of the Air Force, EEOC Appeal No. 01921869
(November 2, 1993) ((stating that an allegation of retaliation for
union activity not involving discrimination fails to state a claim
of retaliation).
IV. CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the Commission affirms the agency's final action
and remands the matter to the agency in accordance with this decision
and the Order below.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____3/29/05______________
Date