01984249
01-12-2000
Lynn M. Kazemekas, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Lynn M. Kazemekas v. Department of Health and Human Services
01984249
January 12, 2000
Lynn M. Kazemekas, )
Appellant, )
)
v. ) Appeal No. 01984249
) Agency No. AHC 97-01
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated April 13, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified 24 factual allegations raised by
the appellant's complaint. The decision found that the allegations
stated the following claims of discrimination:
Since August 1996 [the appellant's] supervisors have continuously
(1) withheld work-related information and/or assignments from [the
appellant];
(2) eroded [the appellant's] job responsibilities by giving them to the
male expert who performed the same work as [the appellant] under the
same supervisor but who was compensated at a much higher pay rate than
[the appellant]; and
(3) created an intimidating work environment [for the appellant].
The decision dismissed allegations 10, 11, 15, 19, 21, and 23 for failure
to state a claim because, purportedly, the appellant had identified the
allegations as background information. The decision dismissed allegations
5, 8, 17, 18, 20 and 22 for untimely counselor contact. In so doing, the
decision rejected the appellant's contention that the allegations should
be deemed timely as part of the appellant's continuing violation claims.
In addition, the decision dismissed allegation 8 for failure to state
a claim.
On appeal, the appellant contests the dismissal of allegations 5, 8,
17, 18, 20 and 22.
After a review of the record, the Commission finds that the agency erred
when it dismissed allegations 5, 17, 18, 20 and 22. The Commission
determines that these allegations are part of a continuing violation.
The Commission agrees with the appellant's attorney that allegations 5,
20, and 22 should be investigated as part of the appellant's hostile
work environment claim. The Commission also agrees with the appellant's
attorney that allegations 17 and 18 should be investigated as part of
the appellant's claim that she has been denied job-related information
and assignments.
The Commission affirms the agency's dismissal of allegation 8 (purported
failure of agency officials to acknowledge receipt of a document she
submitted) for failure to state a claim because the matter raised
therein does not rise to the level of a change in the appellant's terms
and conditions of employment. Moreover, allegation 8 is not part of
the appellant's continuing violation allegations.
The Commission notes that while the agency properly determined that
appellant's complaint was comprised of three claims and that the
appellant's factual allegations should be considered as part of those
claims, the Commission amends the date identified in the agency's
definition of the first claim, from "August 1996", to "1995," in order
to include the remanded allegations.
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 8 and REVERSES the agency's dismissal of
factual allegations 5, 17, 18, 20 and 22. Appellant's three claims,
as amended, are REMANDED to the agency for processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (allegations 5,
17, 18, 20, and 22) in accordance with 29 C.F.R. �1614.108. The agency
shall acknowledge to the appellant that it has received the remanded
allegations within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to appellant a copy of the
investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 12, 2000
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations