0120101948
09-14-2010
Darlene Melton, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Darlene Melton,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101948
Agency No. PHI-09-0177-SSA
DECISION
On April 5, 2010, Complainant filed an appeal from the Agency's March 8, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Disability Processing Specialist at the Agency's Center Disability Processing Branch facility in Philadelphia, PA.
On February 20, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the basis of reprisal for prior protected EEO activity under Title VII and the ADEA.1 In support of her claim of harassment, Complainant alleged that the following events occurred:
1. Complainant received an unfavorable performance evaluation for FY 2008;
2. In 2006, some of Complainant's boxed office supplies were lost during an office move;
3. Complainant was told she would be charged absence without leave (AWOL) when she was out due to breathing problems in early 2008;
4. In April 2008, she was accused of returning from lunch late; and
5. In August 2008, when Complainant was told she could be sent home for wearing jeans.
The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same matter in a grievance procedure. The Agency accepted Complainant's claim of harassment based on events (2) - (5) for an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant failed to show that the alleged events occurred based on her prior protected EEO activity nor did the events, taken as a whole, created a hostile work environment. As such, the Agency issued its final decision finding no retaliatory harassment. Complainant appealed asserting that since she testified at a co-worker's discrimination hearing, she has been subjected to a hostile work environment. Further, Complainant contended that the negative performance evaluation has been used to deny Complainant promotion opportunities. As such, she requested that the Commission reverse the Agency's final order. The Agency asked that we affirm its final order finding no retaliatory harassment.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant stated on appeal that she has been denied promotion opportunities due to the performance appraisal. The record indicates that the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the matter in a grievance process. Complainant has not challenged the dismissal of claim (1) and merely raised new claims of discrimination on appeal. As such, we shall not address the dismissal of claim (1). To the extent Complainant has asserted for the first time on appeal that she has been denied promotional opportunities, we find that such issue is not properly before the Commission. Accordingly, the Commission shall solely review Complainant's claim of retaliatory harassment based on events (2)-(5) as stated above.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
It is well-settled that harassment based on an individual's protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that Complainant failed to show that the alleged harassment occurred because of her prior protected activity. Further, we note that Complainant has not alleged events, taken as a whole, were sufficiently severe or pervasive enough to establish a prima facie case of retaliatory harassment. Accordingly, we find that Complainant has not shown that she was subjected to harassment based on her prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no retaliatory harassment.
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
September 14, 2010
__________________
Date
1 Complainant indicated that she testified at a hearing supporting an employee's claim of discrimination in violation of the ADEA and Title VII.
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0120101948
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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