Erin G. Williams, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 25, 2004
01A34779_01A40608_r (E.E.O.C. Feb. 25, 2004)

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