Lynn M. Kazemekas, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01984249 (E.E.O.C. Jan. 12, 2000)

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