01A63022
08-24-2006
Valerie J. Owens, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Valerie J. Owens,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A63022
Agency No. PHI061841SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 21, 2006, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of race (African-
American), sex (female), disability (unspecified), age (D.O.B. unknown, 48
years old when Formal Complaint was filed) and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record when:
1. From February 28, 2005 through the present she did not receive
adequate training;
2. From August 17 to October 24, 2005 she was subjected to
demeaning and offensive conduct from her mentor; and
3. she was denied a reasonable accommodation.
The FAD characterized claim 1 as alleging complainant was denied training
from February 28 through August, 2005. The agency then dismissed claim 1
for untimely EEO Counselor Contact, noting that complainant did not contact
a counselor until November 16, 2005. The agency dismissed claim 2 for
failure to state a claim, finding that the actions complained of were
insufficiently severe or pervasive to state a claim of harassment. The
agency failed to identify claim 3 as an issue and did not render a decision
addressing it. Regarding issue 1, complainant maintains on appeal that her
claim is timely because the denial of her training is ongoing and therefore
constitutes a continuing violation.
Analysis and Findings
With regard to the agency's dismissal of claim 1 for timeliness, we note
that a fair reading of the complaint and related documents makes it clear
that complainant is alleging that the denial of training is ongoing. On
appeal, she reiterates that the "training I failed to receive did not end
in August 2005 as stated [in the FAD] but was going on . . . into 2006."
Complainant's Appeal Brief. A review of the record reveals no support for
the agency's decision to use August 2005 as the end-date for complainant's
claim of denial of training. We therefore find that complainant is
alleging a repeated and ongoing denial of training that was timely raised.
Regarding claim 3, the agency did not identify this as an issue in the FAD
and did not address it. Because an employer has an ongoing obligation to
provide a reasonable accommodation, failure to provide such accommodation
constitutes a violation each time the employee needs it. EEOC New
Compliance Manual, Section 2, p. 73. Accordingly, claims 1 and 3 are
hereby REMANDED to the agency for processing in accordance with the Order
set forth below.
With regard to the agency's dismissal of claim (2) for failure to state a
claim, a claim should not be dismissed on this ground unless it appears
beyond doubt that the complainant cannot prove a set of facts in support of
the claim which would entitle the complainant to relief. The trier of fact
must consider all of the alleged harassing incidents and remarks, and
considering them together in the light most favorable to the complainant,
determine whether they are sufficient to state a claim. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). In Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986), that harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment. The
Court explained that an "objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive:"
and the complainant subjectively perceives it as such. Harris, supra at 21-
22. Thus, not all claims of harassment are actionable.
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in the
context of the totality of the circumstances, considering, inter alia, the
nature and frequency of offensive encounters and the span of time over
which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy
Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March
19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March
13, 1997). However, as noted by the Supreme Court in Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the 'terms and conditions of employment." The
Court noted that such conduct "must be both objectively and subjectively
offensive, [such] that a reasonable person would find [the work environment
to be] hostile or abusive, and . . . that the victim in fact did perceive
to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
In claim (2), complainant alleges that she was assigned a mentor (CW:
female; DOB, race, disability unknown) who was a cigarette smoker. She
maintains that she requested another mentor but that this was denied and
that such a denial constitutes harassment. She further maintains that CW
"intentionally carried out offensive conduct" by standing close to
complainant, thus subjecting complainant to CW's "second-hand smoke"[1] and
by telling complainant she did not believe complainant could do the job.
Complainant further makes vague allegations that CW threatened her, but she
does not identify any specific incidents, or the nature of such threats.
Given such allegations by complainant, we find that the agency properly
dismissed claim 2 for failure to state a claim of harassment. We note that
complainant has not alleged any behavior that either involved or was based
on any of her protected classes. Nor has she alleged any behavior that is
sufficiently severe or pervasive enough to state a claim of harassment.
Therefore, the Commission AFFIRMS the agency's dismissal of claim (2).
ORDER (E0900)
The agency is ordered to process the remanded claims (1) and (3) in
accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
August 24, 2006
__________________
Date
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[1] It is unclear from the record whether complainant is alleging that CW
smoked in the office, or that the smell of smoke on CW's clothes
constituted exposure to second-hand smoke.