0120142424
01-05-2016
Glinda M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Glinda M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120142424
Agency No. ATL-13-0818-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 15, 2014, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Care Technician at the Agency's Hearing Office in Mobile, Alabama.
On December 30, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and sexual harassment on the bases of race (Arabian-Lebanese), sex (female), and age (37) when:
1. On August 30, 2013, Complainant's request to physically move her work location across the office was denied and Complainant was assigned a new Group Supervisor instead;
2. On August 22, 2013, Complainant's Team Lead held an entrance door open for Complainant and then glared at Complainant during the time the Team Lead was talking to Complainant's coworker; and
3. On August 12, 2013, Complainant's Team Lead shoved a hearing notebook between Complainant's face and the computer monitor and said, "Here You Go," instead of placing the notebook on a back table.
Complainant also said "see EEO Counselor's Report." The Counselor's Report outlines several pages of Complainant's allegations. Those allegations claim that, on October 18, 2012, she received an email from her team lead. The email "addressed her getting along with co-workers and how it would affect her work evaluation." The Team Lead also told Complainant that she (the Team Leader) intended to look over Complainant's files and cautioned her not to confer with her coworkers as to how they are working their cases. On another occasion, she accused Complainant of failing to check her mailbox. The Team Lead's misconduct included calling another employee a "Bitch" and touching the coworker. Although Complainant brought her concerns to management's attention, she never received a response from management.
Complainant and the coworker then reported her director and supervisor for the misconduct to the Regional Management Review Team. In addition, she claims that her performance appraisal was affected after the panel from the Regional Office came to their facility for a Management Performance Review. During Complainant's closed-door conversation with the panel, the director walked into the room, uninvited. The panel asked the Director to leave. The panel also informed Complainant, that, inasmuch as "nothing has been done to resolve this matter" that they viewed the environment as "bullying" and a hostile work environment. During a 6:45 AM meeting with the Administrative Judge regarding her concerns about retaliation and the ongoing hostile environment, her team lead began pounding on the door with her first and interrupted the by rattling the door trying to get into the office. She was screaming through the door. After the Judge opened the door, the team lead barged in, still yelling, with her fist near Complainant's face. Complainant asked that her work station be moved to the other side of the office, but her request was not granted. Instead, she was reassigned.
.
On page 14, the counselor stated that the incidents are not within 45 days of Complainant's EEO contact, "but show a pattern of harassment from her team lead." The Agency accepted only the three most recent claims.
The Agency issued a final decision dismissing claims 1 through 3 for failure to state a claim. The Agency concluded that "Complainant has not alleged, nor shown in Claims 1 through 3, that she has suffered a direct personal injury that affected a term, condition or privilege of her employment; therefore, she is not aggrieved and has failed to state a claim" with regard to her race and sex claims. With regard to her age claim, the Agency found Complainant failed to state a claim because Complainant was under age 40 and "did not meet the ADEA age requirements."
This appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
On appeal, Complainant asserts that the Agency wrongfully dismissed her complaint, maintaining "there are numerous incidents of harassment that might not seem like much when taken singly, but when combined they make for a horrible and poisonous environment" and further alleges that she "suffered direct personal injuries, which have affected [her] employment."
In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment and disparate treatment (based on her "race" / national origin" and sex). She claims that the treatment includes a lack of promotional opportunity and is due to the fact that she is of Arabian-Lebanese descent and "not a female who has a relationship with (a management official) outside of work." We find that Complainant's allegations are sufficient to state a claim of a hostile work environment on the alleged bases of race and sex discrimination.
We agree with the Agency, however, that Complainant failed to state a claim of age discrimination because she did not allege that she was in the protected age group - over age 40.
Finally, inasmuch as Complainant alleges that she has been subjected to an ongoing pattern of discriminatory and retaliatory harassment, we find that her other claims are included as like and related, and when taken together, they state a claim. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's September 6, 2013 EEO counselor contact was timely made from some of the events she proffers as examples of the alleged ongoing harassment/hostile work environment.
Accordingly, we REVERSE, in part, and AFFIRM, in part, the Agency's final decision dismissing Complainant's complaint. We AFFIRM with regard to her claims of age discrimination. We REVERSE the dismissal with regard to her claims of race and sex discrimination. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded race and sex claims in accordance with 29 C.F.R. � 1614.108. The remanded claims include all of the referenced allegations. 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 (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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