01A32962_r
12-30-2003
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