01A05836_r
12-04-2002
Tillie A. Lynn, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Tillie A. Lynn v. National Security Agency
01A05836
December 4, 2002
.
Tillie A. Lynn,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01A05836
Agency Nos. 98-037, 98-042, 99-002, 99-004, 99-008, 99-011, 99-040
Hearing No. 120-99-6434X
DECISION
Complainant timely appealed to this Commission from the agency's final
order concerning her employment discrimination complaints. In its final
order, the agency adopted the conclusions of an EEOC Administrative
Judge (AJ), finding no discrimination. Complainant's claims concerned
violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant, an agency Systems Administrator, filed a series of complaints
alleging discrimination on the bases of race (African-American), sex
(female), color (light-skinned), disability (back injury, heart disease,
and high blood pressure), age (date of birth March 31, 1955), and
reprisal for prior EEO activity. The agency processed and investigated
each complaint individually, but when complainant requested a hearing
for each complaint, the EEOC AJ consolidated the claims together for a
single decision. In an exhaustive opinion without a hearing, the EEOC
AJ found no discrimination.
In her formal complaints, complainant alleged discrimination when:
(1) On July 27, 1998, the agency issued complainant a leave requirement
letter;
Complainant was charged Absent-Without-Leave (AWOL) on a number of
occasions, including:
Complainant was charged 8 hours of AWOL on July 30, 1998;
Complainant was charged a total of 6.5 hours of AWOL on August 11, 13,
and 14, 1998;
Complainant was charged 1.5 hours AWOL for varying her arrival time on
August 29, 1998;
Complainant was charged 8.25 hours AWOL on the days she attended physical
therapy despite the fact that her OWCP claim was accepted on August 28,
1998 for the injury she sustained on August 6, 1998;
Complainant's time sheet was not timely entered into the Defense Civilian
Payroll System, causing a delay in complainant's receipt of 80 hours
of pay;
The Chief of Customer Service denied complainant a release from the
organization to accept a position in a different office;
After complainant was notified via e-mail of her selection for a
position in a different office, and after she requested a release from
management, complainant learned that the other office withdrew her name
from selection, and the personnel representative requested that all
future notes regarding the competitive selection process go through him.
On August 11, 1998, management removed complainant's root access to
the server, preventing complainant from performing some duties as a
systems administrator;
On August 17, 1998, management attempted to have complainant's Office
of Workers' Compensation Program (OWCP) benefits denied by defaming
her character on form CA-1;
A tracer was installed on complainant's computer that sent data to
management officials;
On August 17, 1998, complainant's branch chief forced her to move from
a warm work station with modular furniture to a cold and drafty work
area with an old grey desk that was not conducive to her back problem;
Complainant was suspended without pay from October 19 - 23, 1998;
On September 21, 1998, the Deputy Chief sent an e-mail message stating
that complainant's work ethic would not be tolerated;
On October 1, 1998, the Deputy Chief drafted a Memorandum for the Record
documenting a discussion regarding a meeting to review complainant's P3
(evaluation) objectives;
On October 30, 1998, the Deputy Chief sent an e-mail to complainant
informing her that effective November 2, 1998, her lateness/unexcused
absences would result in complainant being charged AWOL in 15 minute
increments;
Complainant's P3 performance plan covered a nine-month period instead
of one year, and gave complainant an overall rating of 2.9 due to a
rating of 2 on Performance Objective 5.
The Commission will not address the merits of claim (7) � it fails
to state a claim. In claim (7), complainant is attempting to lodge
a collateral attack to the OWCP process. Such matters fail to state
a claim. See Walsh v. United States Postal Service, EEOC Request
No. 05980369 (March 29, 2001). Further, statements or actions to
oppose an OWCP claim do not give rise to an actionable claim. Conley
v. Department of the Navy, EEOC Request No. 05970402 (February 11, 1999)
(claim that false statements were sent to OWCP fails to state a claim);
Ward v. United States Postal Service, EEOC Request No. 05980036 (March
19, 1998) (claim that the agency submitted documents to refute OWCP
claim fails to state a claim).
With regard to the remaining claims, the EEOC AJ properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws for the remaining claims. After a careful review of the record,
the Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. The Commission need not
determine whether complainant was a disabled individual, because we find
that, regarding any claims of a denial of a reasonable accommodation
(claims 2(D) and 9), the agency was not on notice (and could not
reasonably be expected to be on notice) of complainant's claimed
disability prior to September 1998, which was after the alleged denials
of a reasonable accommodation. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.
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
December 4, 2002
__________________
Date