Lisa M. McAdoo, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a50228 (E.E.O.C. Mar. 29, 2005)

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.

29 C.F.R. 1614.405(a).

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