01A34779_01A40608_r
02-25-2004
Erin G. Williams, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Erin G. Williams v. Social Security Administration
01A34779
February 25, 2004
.
Erin G. Williams,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal Nos. 01A34779
01A40608
Agency Nos. 03-0325-SSA
03-0404-SSA
DECISION
Complainant initiated contact with an EEO Counselor on April 22, 2003,
with regard to Agency No. 03-0325-SSA. In a formal EEO complaint
dated May 30, 2003, complainant claimed that she was subjected to
discriminatory harassment and a hostile work environment on the bases
of her sex (female), race (Caucasian), and in reprisal for her previous
EEO activity when:
1. On March 21, 2003, the Technical Advisor made several inappropriate
and unsolicited comments of a sexual nature to complainant.
2. On March 24, 2003, complainant brought the incidents set forth in
claim (1) to the attention of management. On May 2, 2003, management
supplied complainant with the results of its investigation in which it
concluded that complainant had not been subjected to sexual harassment
and a hostile work environment. Complainant concluded that management
had not taken her complaint seriously.
3. Management's handling of the investigation furthered the hostile
work environment because coworkers began to look at her with contempt
and engage in gossip about her.
4. Once complainant contacted the Civil Rights and Equal Opportunity
Office for counseling, management retaliated against her by restricting
her use of leave.
5. The ensuing stress caused complainant to be unable to work the overtime
hours that she would normally have worked.
With regard to Agency No. 03-0404-SSA, complainant initiated contact with
an EEO Counselor on June 9, 2003. On July 30, 2003, complainant filed
a formal EEO complaint wherein she claimed that she was subjected to
harassment and a hostile work environment in reprisal for her previous
EEO activity under Title VII when on June 4, 2003, she was instructed
to attend a meeting at the Auburn Teleservice Center concerning the
statement she provided to the court relating to a restraining order that
she had filed against another employee.
Complainant has not challenged the agency framing of either complaint.
By agency decision dated July 17, 2003, the agency dismissed the complaint
in Agency No. 03-0325-SSA pursuant to 29 C.F.R. �1614.107(a)(4),
on the grounds that complainant elected to pursue these matters in a
negotiated grievance procedure that permits allegations of discrimination.
The agency determined that complainant filed a grievance regarding the
matter at issue on April 4, 2003. The agency noted that the collective
bargaining agreement permits allegations of discrimination and that
complainant raised her claim under the negotiated grievance procedure
prior to filing the instant complaint. The agency further noted that
complainant withdrew her grievance on April 9, 2003, but that the
withdrawal of a grievance does not abrogate its effect for purposes of
an election.
By agency decision dated September 23, 2003, the agency dismissed the
complaint in Agency No. 03-0404-SSA pursuant to 29 C.F.R. �1614.107(a)(5)
on the grounds of mootness. According to the agency, complainant resigned
from her position, effective August 18, 2003. The agency determined
that there is no reasonable expectation that the alleged violation,
even if true, will recur and the effects of the alleged violation have
been completely and irrevocably eradicated.
The Commission consolidates the two complaints in this decision because
both complaints involve a claim of harassment. See 29 C.F.R. � 1614.606.
In complainant's grievance, complainant claimed that: the agency failed
to provide a safe and healthy work environment; the Unit-4 Supervisor
did not treat her in a professional manner with courtesy, dignity and
respect; the Supervisor made comments concerning the American flag and
about employees with Employee Assistance Program appointments; and the
Supervisor refused to assist with regard to harassment by other employees
in the unit. We observe that in both the grievance and claim (1) of the
instant complaint, complainant focuses on the harassment to which she
has allegedly been subjected. By filing a grievance prior to filing the
instant complaint, complainant made an election to proceed through the
negotiated grievance process with regard to this claim. Once complainant
made such an election she could no longer file a complaint on the same
matter. Accordingly, the agency's dismissal of claim (1) of Agency
No. 03-0325-SSA was proper pursuant to 29 C.F.R. � 1614.107(a)(4).
The Commission finds that claims 2 - 5 and the claim set forth
in Agency No. 03-0404-SSA should be dismissed on the grounds of
failure to state a claim. The alleged incidents in these claims,
when considered together, lack sufficient severity or pervasiveness to
constitute a claim of harassment. Complainant also has not specifically
established that the alleged incidents caused her to suffer personal
harm to a term, privilege, or condition of her employment. We note
that complainant has not identified any specific incident where she was
denied leave. Accordingly, these claims are dismissed pursuant to 29
C.F.R. �1614.107(a)(1) on the grounds of failure to state a claim.
The agency's decisions dismissing the complaints are 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
February 25, 2004
__________________
Date