0120062702
05-29-2008
Irma D. Paynes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Irma D. Paynes,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200627021
Hearing No. 110-A5-00352X-LL
Agency No. 04-0351-SSA
DECISION
Complainant filed an appeal from the agency's final action, finding
no discrimination with regard to her complaint. In her complaint,
dated July 10, 2004, complainant, an Information Technology Specialist,
GS-13, with the Office Automation Team, the Center for Automation within
the Office of the Assistant Regional Commissioner for Management and
Operations Support in the agency's Atlanta regional office, alleged
discrimination based on age (over 40), race (African-American), sex
(female) and in reprisal for prior EEO activity when she was subjected
to non-sexual harassment and a hostile work environment in that: (1)
management lowered her training points on her application for the 2004
Atlanta Management Development Program, the GS-14 Project Management
position, resulting in her nonselection for the program; and (2) she was
not selected for a GS-14 Social Insurance Specialist (Project Manager)
position for which she applied in March 2004.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On February
1, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions.
With regard to claim (1), upon review, the Commission finds that the
agency properly dismissed it due to untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency stated that it
announced the selection for the position at issue on February 6, 2004,
via electronic message to all employees, including complainant, in the
Center for Automation. On appeal, complainant does not dispute her
receipt of this message. Complainant contacted an EEO Counselor with
regard to the subject matter on April 2, 2004, which was beyond the
45-day time limit set by the regulations. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period is triggered under
the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2); Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant reasonably
should have suspected discrimination, but before all the facts that would
support a charge of discrimination have become apparent. The Commission
finds that complainant's waiting until her subsequent nonselection of
March 10, 2004, described in claim (2), did not constitute adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor.
With regard to claim (2), a selecting official stated that she selected
a selectee for the position because she was the best candidate.
Specifically, the selecting official indicated that for the Project
Manager position at issue, she was seeking someone with a programmatic
technical background, regional and national exposure on programmatic
issues, and an ability to converse with staff and management personnel at
various levels. The selecting official stated that she was also looking
for someone who had held technical positions, lead responsibilities on
regional and national workloads, and staff and supervisory experience in
programmatic areas. The selecting official stated that the selectee had
a wide range of operational programmatic and supervisory experience of
which complainant lacked. The selectee also had experience with national
workgroups whereas complainant had no field office experience and had
never held positions such as claims representative or operation analyst
and no in-depth experience with SSA programs and policies. Complainant's
supervisor noted that complainant did not interact with her coworkers
very well and had strained relationships with her last two team leaders.
The record indicates that complainant also identified a number of
incidents, i.e., concerning working conditions and remarks from her
coworkers, including non-management employees, occurring from March 2001
to August 2003, which purportedly caused her nonselections at issue.
The agency stated and we agree that these incidents were untimely pursuant
to 29 C.F.R. � 1614.107(a)(2). Furthermore, the Commission also finds,
as stated by the agency, that complainant failed to offer sufficient
evidence to show that the alleged harassment was sufficiently severe or
pervasive to affect a term or condition of her employment.
Complainant also claimed that on March 4, 2004, she was subjected to a
hostile work environment when her team leader told her that complainant's
supervisor wanted to meet with her, i.e., concerning her leaving a
meeting early to go to the bathroom, and advised her to bring a union
representative. Complainant further claimed that on March 23, 2004, an
agency official suggested that she make herself available for advancement
opportunities; and on April 15, 2004, she received an electronic message
that was not available to employees, announcing a leadership program with
an ending application date of January 17, 2004. There is no evidence
that complainant was subjected to any disciplinary action as a result of
the alleged actions. Upon review, the Commission finds that complainant
failed to show that the alleged harassment was sufficiently severe or
pervasive to affect a term and condition of her employment.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
5/29/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120062702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036