Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2013-3113-0500 (E.E.O.C. May. 13, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120133113

Agency No. SF-13-0476-SSA

DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated
June 27, 2013 dismissing her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq

. Upon
review, the Commission finds that Complainant's complaint was properly dismissed pursuant
to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative at an Agency work facility in San Francisco, California. On June 4, 2013,
Complainant filed a formal complaint wherein she claimed that the Agency subjected her to
discriminatory harassment on the basis of her sex (female) when:
1. 1.
1. On December 24, 2011, Complainant’s Supervisor yelled at her in front of a
claimant.

2. On June 12, 2012, the Supervisor yelled at Complainant, saying “I told you to take
the interview I told you to take” and “I have asked you to put cases in EPAD and you
didn’t.”

3. On June 20, 2012, the Supervisor called Complainant “stupid.”

4. On June 29, 2012, the Supervisor pointed his finger at Complainant’s chest and said
“I will print a form and make you sign it.”

0120133113

2
5. On July 10, 2012, the Supervisor forced Complainant to sign a performance
evaluation Complainant knew she did not have to sign.

6. On July 11, 2012, Complainant did not receive an award for her work performance.

7. On July 13, 2012, the Supervisor stated that he could get rid of Complainant.

8. In July 2012, the Supervisor did not warn Complainant beforehand that a chair she
sat in was broken, and Complainant almost fell on the floor.

9. On July 31, 2012, the Supervisor demanded to see Complainant and questioned her
work.

10. On August 1, 7, 14, 30 and 31, 2012, the Supervisor questioned Complainant’s
work.

11. In August 2012, the Supervisor stood close to Complainant while she was at the
printer and stared at her without speaking and followed her when she moved away.

12. On September 6, 2012, Complainant witnessed the Supervisor hug and kiss the
union representative.

13. On September 11, 2012, the Supervisor issued Complainant a reprimand.

14. On September 11, 2012, the Supervisor threw a piece of paper at Complainant’s
lower private part.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds
that Complainant failed to initiate contact with an EEO Counselor within 45 days of the most
recent alleged discriminatory event. The Agency stated that the most recent event occurred on
September 11, 2012, and that Complainant initially contacted an EEO Counselor on April 2,
2013. The Agency also dismissed claims (13-14) pursuant to 29 C.F.R. § 1614.107(a)(4) on
the grounds that Complainant elected to pursue these claims through the Agency’s negotiated
grievance procedure. According to the Agency, since the National Agreement permits
allegations of discrimination, and Complainant raised the matters under the negotiated
grievance procedure prior to filing the instant complaint, Complainant could not file an EEO
complaint on the same matters.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she did initiate EEO contact in a timely manner.
Complainant states that she contacted the Union President on August 21, 2012, and filed a
grievance regarding the harassment she was experiencing. Complainant states that on August
31, 2012, when her Supervisor came to her workspace, she made three requests to have her
0120133113

3
Union Representative present, but the Supervisor denied each request. Complainant claims
that in September 2012, she called the Agency’s Civil Rights and Equal Opportunity Office
and left a message about filing an EEO complaint against her Supervisor. Thereafter,
Complainant states that on October 2, 2012, she contacted the EEO Manager. Complainant
acknowledges that she did not follow through on her EEO complaint due to a medical condition
that kept her out of work from September 19, 2012, to March 4, 2013.

Complainant further argues that the 45-day limitation period should be waived because she was
not notified or otherwise aware of the 45-day time limit for initiating contact with an EEO
Counselor. Additionally, Complainant maintains that if her EEO Counselor contact was
untimely, that despite due diligence, she was prevented by circumstances beyond her control
from contacting an EEO Counselor within the 45-day time limit. Complainant claims that the
medical issue that prevented her from working from September 19, 2012, to March 4, 2013,
was caused by her hostile work environment. According to Complainant, her frequent
attempts to initiate contact with EEO Counselors both during and after the harassment
demonstrated her due diligence.

In response, the Agency asserts that Complainant is incorrect in considering her contact with a
Union Representative as constituting contact with an Agency official logically connected to the
EEO process. The Agency argues that given that the most recent alleged discriminatory event
occurred on September 11, 2012, Complainant had ample opportunity to contact an EEO
Counselor as she did not go on medical leave until eight days later. The Agency states that
after Complainant went on medical leave, she contacted the San Francisco EEO Office on
September 28, 2012, and left a message about filing an EEO complaint. The Agency notes
that Complainant stated she initiated contact with the Manager of the EEO Office in Richmond,
California on October 2, 2012. According to the Agency, on October 5, 2012, Complainant
made an appointment to meet with the San Francisco EEO Office on October 9, 2012, for an
intake interview, but she did not keep the appointment. The Agency stated that Complainant
did not seek to reschedule the appointment until April 2, 2013. The Agency maintains that
Complainant’s failure to keep the October 9 appointment reflected a lack of intent to pursue
EEO counseling.

With regard to Complainant’s claim that she was unaware of the 45-day limitation period for
contacting an EEO Counselor, the Agency asserts that Complainant was constructively aware
of the time limit. The Agency notes that it provided an affidavit which states that an EEO
poster containing information regarding the applicable time limits for initiating the EEO
counseling process was conspicuously posted at Complainant’s work facility during the
relevant period.

The Agency asserts that Complainant failed to act with due diligence in pursuit of her claim.
According to the Agency, although Complainant asserts she had various medical conditions,
there is insufficient evidence in the record to support the assertion that she was so incapacitated
for a period of over six months that she was unable to contact an EEO Counselor. The Agency
points out that Complainant made contact with EEO Offices on several occasions during the
0120133113

4
period she was on medical leave. The Agency notes that Complainant was not hospitalized
during the period she was on medical leave and she did not submit medical documentation that
indicates she has been in any treatment that would have rendered her so incapacitated to
prevent her from filing an EEO claim. Finally, the Agency asserts that Complainant’s filing of
a grievance on September 14, 2012, regarding the reprimand issued on September 11, 2012,
provides direct evidence of Complainant’s intent to raise this matter in the negotiated grievance
forum. The Agency notes that the instant EEO complaint was not filed until June 4, 2013.

ANALYSIS AND FINDINGS
The record discloses that the most recent alleged discriminatory event occurred on September
11, 2012, but the Agency determined that Complainant did not initiate contact with an EEO
Counselor until April 2, 2013, which is beyond the forty-five (45) day limitation period. On
appeal, Complainant argues that she initiated EEO contact on several occasions prior to April
2, 2013, within the 45-day limitation period. Complainant claims that she initiated contact
with a Union Representative and that constitutes contact with an Agency official logically
connected to the EEO process. We find that a Union Representative is not an Agency official
logically connected to the EEO process. See Sacco v. United States Postal Service

, EEOC
Appeal No. 0120101327 (May 26, 2011).
With regard to Complainant’s subsequent alleged attempts to initiate the EEO process, we
observe that Complainant contacted EEO Offices several times but when she had an
opportunity to pursue the EEO process, she chose not to do so. Complainant had an intake
interview scheduled for October 9, 2012, with the San Francisco EEO Office but she did not
keep the appointment, and did not reschedule the appointment until April 2, 2013. We find
that Complainant did not exhibit intent to pursue the EEO complaint process until April 2,
2013, and thus her EEO contact was untimely.

Complainant claims that she was unaware of the 45-day limitation period. The record,
however, indicates that Complainant had constructive notice of the time limit as the Agency
provided an affidavit from the District Manager at Complainant’s work facility that states an
EEO poster listing the 45-day limitation period was prominently displayed at the facility. With
respect to Complainant’s claim that despite her due diligence, she was prevented from pursuing
the EEO process due to her medical conditions, we observe that Complainant informed the
EEO Counselor in April 2013, that she had nightmares for the past six months, was attending
therapy sessions and that her conditions were acute stress disorder, panic attacks and anxiety.
However, we discern no medical documentation in support of these assertions. Therefore,
Complainant failed to present sufficient evidence to establish that she was so incapacitated to
prevent her from pursuing the EEO process. We find that Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact.1

1 In light of our finding that Complainant failed to initiate EEO Counselor contact in a timely
manner, we need not address the Agency’s alternative grounds for dismissal of claims (13-14).

0120133113

5

CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(S0610)
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
0120133113

6
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
May 13, 2015