0120151476
07-21-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151476
Agency No. SF140833SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 4, 2015, dismissing his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Senior Case Technician at the Agency's Moreno Valley, California Office of Disability Adjudication Review (ODAR).
On November 21, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in the form of a hostile work environment on the bases of national origin (unspecified) and disability (Post Traumatic Stress Disorder (PTSD)) when:
1. On May 26, 2014, he was placed on administrative leave;
2. On or around June 2014, his personal belongings were not released; and
3. On August 1, 2014, he was called in for a Weingarten Meeting for an investigative interview.
On May 26, 2014, Complainant's supervisors met with him and asked him to remove the camouflage netting he had placed over his workspace. Afterward, Complainant stated he was "too upset to continue working," so the office director placed him on administrative leave for the rest of the day. As he left, Complainant also commented "I have some things to work out," which his supervisors interpreted as a potential threat. The regional office placed Complainant on indefinite administrative leave, pending an investigation of the incident. Complainant did not contact the Agency about his status, but in June, 2014, he attempted - without success - to have a friend, and then a police officer (in response to a report filed by Complainant) collect the belongings he left at his workspace.
On July 8, 2014, the Agency notified Complainant that he must report to a Weingarten Meeting on August 1, 2014 as part of an Agency investigation to determine if its conduct rules were violated during the May 26, 2014 incident. Upon arrival, Complainant was searched, and "made to feel like he was not an employee of [the Agency]." Complainant alleged that his words were taken out of context and the meeting constituted harassment.
The Agency dismissed Claims 1 and 2 pursuant to 29 C.F.R. � 1614.105(a)(1), due to the untimely contact with an EEO Counselor; and Claim 3 because Complainant failed to establish that he was an "aggrieved employee" as defined in 29 C.F.R. � 1614.103.
ANALYSIS AND FINDINGS
Claims 1 and 2
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEQ Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The record discloses that the discriminatory events from which Claims 1 and 2 arise occurred on May 26, 2014, and sometime in June 2014, yet Complainant did not initiate contact with an EEO Counselor until August 18, 2014, which is beyond the forty-five (45) day limitation period for both events. Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Claim 3
The U.S. Supreme Court has held that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), reaffirming Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) Thus, not all claims of harassment are actionable. Complainant's discomfort and humiliation over being searched were a reasonable reaction, as was his apparent frustration over feeling his words were taken out of context. However, these incidents individually or collectively, are not sufficiently severe or pervasive to assert a viable discrimination claim under Title VII. Additionally, Complainant did not explain how he was harmed.
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 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
July 21, 2015
__________________
Date
2
0120151476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151476