01a60450
04-28-2006
Elizabeth I. Vaden, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Elizabeth I. Vaden v. Social Security Administration
01A60450
4-28-06
.
Elizabeth I. Vaden,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A60450
Agency No. 05-0318-SSA
DECISION
Upon review, the Commission finds that claims (a), (b), and(c)
of complainant's complaint were properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. However,
the Commission finds that claim d was improperly dismissed as untimely.
For the reasons that follow, the agency's decision is affirmed in part,
reversed in part and remanded. In her complaint, complainant alleged
that she was subjected to discrimination on the basis of reprisal for
prior EEO activity when:
In May 2004, complainant's supervisor was not receptive to her suggestions
on ways to process work during an office move to a new building;
On May 19, 2004, complainant's supervisor assigned her to ship 50 cases
by noon the following day. On May 20, 2004, complainant alleges that,
while she solicited help from two co-workers, her supervisor approached
her and said �Are we having a party here?� Complainant further alleges
that on May 25, 2004, she learned that her supervisor had previously been
instructed not to ship folders on May 19, 2004, but failed to share the
information with her;
In August 2004, complainant's request for a continuation of Monday and
Friday as her flexiplace days was denied; and
On October 7, 2004 the Hearing Office Director spoke to complainant in a
rude and scolding tone during a staff meeting. Thereafter, on October
13, 2004, complainant was issued a Letter of Reprimand regarding her
behavior at the staff meeting.
The record discloses that the alleged discriminatory events occurred
between May 2004 and October 13, 2004, but complainant did not initiate
contact with an EEO Counselor until March 22, 2005, which is beyond the
forty-five (45) day limitation period.
On appeal, complainant argues that her complaint should be considered
timely because her union steward initiated contact with an EEO Counselor
regarding her concerns on November 17, 2004.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory, or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant alleges that she has been subjected to continuous
harassment from May 2004 through October 13, 2004 when she was issued
a Letter of Reprimand. She maintains, however, that she initiated
counselor contact through her union representative on November 17,
2004. The Commission finds, accepting complainant's claims as true
that, on November 17, 2004, she contacted an EEO Counselor regarding
her concerns, claims (a), (b), and (c), occurring May through August
2004, would still be untimely in accordance with EEOC Regulations.
Consequently, the agency's dismissal of claims (a), (b), and (c) is
affirmed. The Commission finds, however, that complainant's November 17,
2004 counselor contact would render claim (d) timely in accordance with
EEOC Regulation 29 C.F.R. � 1614.105(a)(1). The rude behavior of the
Hearing Officer as described in claim (d) occurred on October 7, 2004
and on October 13, 2004, complainant was issued a Letter of Reprimand.
Therefore, the Commission finds that the agency's decision regarding claim
(d) was improper and is reversed.
Upon review, the Commission affirms the agency's decision dismissing
claims (a), (b), and (c) as untimely. The portion of the agency's
decision dismissing claim (d) is reversed and claim (d) is remanded to
the agency for further processing in accordance with this decision and
the Order below.
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
____4-28-06______________
Date