Lonna Lusso, Complainant,v.Norman Y. Mineta, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionSep 15, 2000
01a05468 (E.E.O.C. Sep. 15, 2000)

01a05468

09-15-2000

Lonna Lusso, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.


Lonna Lusso v. Department of Commerce

01A05468

September 15, 2000

.

Lonna Lusso,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A05468

Agency No. 00-63-01071D

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission.<1> The

MOU was entered into in order to process complaints arising from the

2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

The Commission's Washington, D.C. Field Office dismissed the instant

complaint for failure to state a claim. In her complaint, complainant

asserted that her supervisor terminated her in retaliation for her

bringing her grandson to training with her. The Field Office determined

that complainant never claimed discrimination under any statutes enforced

by the EEOC. Specifically, the Field Office found that complainant

had not engaged in any prior EEO activity, and did not allege any other

bases for her termination.

On appeal, complainant argues that agency officials told her she could

bring her grandson to training. Once in training, complainant asserts

that her Crew Leader berated her for taking the grandson. She contends

that she reported the Crew Leader's mistreatment, and subsequently was

terminated in retaliation for reporting the Crew Leader. She also claims

that the Crew Leader targeted her for discriminatory treatment because

she sought approval from the Local Office Manager to work Saturdays.

In her formal complaint, complainant argued that she was terminated

because she �went over [her supervisor's] head� in obtaining approval

to work Saturdays. She also claims that the Crew Leader mistreated

her because the Local Office Manager wanted to give her a chance.

The Counselor's Report, dated May 5, 2000, indicates that complainant

did not articulate a discriminatory basis for the agency's actions.

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).

In claims alleging retaliation, the complainant must have engaged

in prior protected activity. Prior protected activity consists of

opposing a practice made unlawful by employment discrimination statutes,

filing a charge of discrimination, or participating in a discrimination

investigation, proceeding, or hearing. See EEOC Compliance Manual,

Volume II, Section 8-I (May 20, 1998). In the present complaint,

complainant has not engaged in prior protected activity. Further, she

has not alleged any other basis for her discrimination claim. Therefore,

complainant has failed to state a claim.

CONCLUSION

Accordingly, the dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 15, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.