Lynda Kennedy-Dias, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01A32962_r (E.E.O.C. Dec. 30, 2003)

01A32962_r

12-30-2003

Lynda Kennedy-Dias, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Lynda Kennedy-Dias v. Department of the Interior

01A32962

December 30, 2003

.

Lynda Kennedy-Dias,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A32962

Agency No. FNP-2002-055

DECISION

Complainant appealed to this Commission from the agency's March 13, 2003

dismissal of her employment discrimination complaint. In her complaint,

complainant alleged that she was subjected to discrimination on the

basis of sex (female) when:

From September 9, 2000 through June 19, 2001, complainant was not provided

a government vehicle for official government travel and transportation.

From September 2001 through June 19, 2001 [sic], complainant's receipt

of reimbursements for the purchase of coffee, office supplies, relocation

expenses and travel vouchers were either delayed or denied.

From September 9, 2000 through June 19, 2001, complainant was not trained

on National Park Service (NPS) policies and procedures and her employment

duties were not explained to her.

In October 2000, complainant was subjected to substandard living

conditions.

In March 2001, complainant received a satisfactory performance review.

On March 1, 2002, complainant's request to be placed on Leave Without Pay

(LWOP) was granted.

Complainant was not reimbursed for an overpayment of her health benefits.

Complainant's sick and annual leave balances were not transferred to

her new government employer.

In its final decision, the agency dismissed claims (1)-(5) for untimely

counselor contact. The agency dismissed claims (6)-(8) for failure

to state a claim. With regard to claim (6), the agency explained

that complainant failed to state a claim because she does not take

issue with the grant of LWOP, but rather with the circumstances that

prompted complainant's request. In claim (7), the agency found that

reimbursement for complainant's overpayment of health benefits was not

its responsibility. According to the agency complainant should have

raised this concern with the vendor that provides its payroll services,

the �National Business Center.� Similarly, the agency denied any

responsibility for claim (8); it found that it properly completed

all paperwork for the transfer of complainant's leave within required

time frames.

Complainant must raise claims of discrimination within forty-five (45)

days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency

may dismiss claims that fail to comply with this time limit. See 29

C.F.R. � 1614.107(a)(2). The time limitation is not triggered until a

complainant reasonably suspects discrimination, but before all the facts

that support a charge of discrimination have become apparent.

As an initial matter, the Commission finds that complainant's EEO

Counselor contact occurred on March 13, 2002, when complainant called the

EEO Office and left a message to request EEO counseling. Claims (1)-(5)

occurred more than 45 days prior to this contact. In response to a

request for information, and on appeal, complainant argues that the harm

complainant suffered in claims (1)-(5) was ongoing, and therefore should

not be considered untimely. The Commission finds, however, that claims

(1)-(5) involve discrete actions, and, therefore, complainant should

have contacted an EEO Counselor within 45 days of their occurrence.

The Commission finds that claims (1)-(5) were not timely raised.

EEOC Regulations require the dismissal of complaints that fail to

state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,

complainant must allege present harm inflicted on the basis of race, sex,

religion, national origin, age, disability, or prior protected activity.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

The agency has misidentified the harm complainant alleges in claim

(6). In response to an agency request for information, and again on

appeal, complainant argues that her claim does not concern the agency's

decision to grant her LWOP request, but rather the agency's actions that

prompted complainant's need to request LWOP, and ultimately, to resign.

The Commission finds that complainant has alleged that the mistreatment

she suffered ultimately resulted in her �constructive discharge� from

employment. This matter states a claim. Accordingly, the agency's

dismissal of claim (6) was improper.

In claims (7) and (8), the agency disclaims any responsibility for the

harm complainant has alleged. The agency has improperly addressed the

merits of claims (7) and (8) without the benefit of an investigation.

Whether the agency, or some other entity, bears responsibility for

the matters raised in claims (7) - (8) should be assessed after an

investigation has been conducted. Therefore, we find that claims (7)

and (8) were improperly dismissed for failure to state a claim.

Finally, the Commission notes that complainant alleged discrimination on

the basis of sexual orientation when she was forced to share lodgings

with a lesbian coworker. In its final decision, the agency notes that

complainant wished to withdraw this claim. On appeal, complainant

explains that she did not intend to withdraw this claim. To the

extent complainant alleges any discrimination on the basis of sexual

orientation in the instant complaint, she has failed to state a claim.

Sexual orientation is not a basis protected by Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,

or any other statute enforced by the Commission. Yost v. United States

Postal Serv., EEOC Request No. 05970940 (October 2, 1997).

CONCLUSION

Accordingly, the agency's dismissal of claims (1)-(5) is AFFIRMED.

The dismissal of the basis of sexual orientation from the complaint is

AFFIRMED. The agency's dismissal of claims (6), as redefined in this

decision, (7), and (8), is REVERSED, and these claims are REMANDED for

further processing pursuant to the Order herein.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

December 30, 2003

__________________

Date