0120102830
12-16-2010
Kenneth R. Chaney, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Kenneth R. Chaney,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102830
Agency No. ATL100237SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 24, 2010, 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 improperly dismissed pursuant to 29 C.F.R. � 1614.107(a).
BACKGROUND
During the relevant time, Complainant worked as an Area Director at a Georgia facility of the Agency. On December 30, 2009, Complainant initiated EEO contact alleging that the Agency discriminated against him on the bases of race (American Indian/Alaskan Native), disability (heart condition, arthritis, chronic bronchitis and knee problems), and reprisal for prior protected EEO activity when:
(1) Complainant was mistreated because he was placed in his Area Director position as a result of an EEO settlement agreement rather than through selection by the Atlanta Regional Commissioner;
(2) his requests to work overtime were consistently denied, including a request dated March 2, 2009;
(3) on August 5, 2009, management issued him an Official Reprimand;
(4) management gave him negative recommendations for promotions, which prevented him from selection for leadership development programs including one on September 21, 2009;
(5) on November 4, 2009, without just cause, management issued him a lower appraisal rating for fiscal year 2009; and
(6) management subjected him to hostile work environment harassment when, on December 15, 2009, Complainant's supervisor asked why he did not attend a meeting although he was aware Complainant was ill and, on December 28, 2009, the Atlanta Regional Commissioner sent Complainant a threatening email related to his supervisor's December 15 email.
In its May 24 final decision, the Agency dismissed the entire complaint pursuant to 29 C.F.R. � 1614.107(a). Specifically, the Agency dismissed (1) pursuant to 29 C.F.R. � 1614.107(a)(1), stating that Complainant had the right to file an allegation of breach under 29 C.F.R. � 1614.504 and can not use the instant process to lodge a collateral attack on the process for allegations of breach. Further, the Agency dismissed (2) through (5) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact. Lastly, the Agency dismissed (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal from Complainant followed, in which Complainant stated that he alleged a continuous violation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See McLouglin v. Dep't of the Treasury, EEOC Request No. 05A01093 (Apr. 24, 2003).
The United States 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). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Morgan at 114. However, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. See Morgan at 117.
Here, we find that a fair reading of Complainant's complaint is one of ongoing hostile work environment harassment. Further, we find that the incidents Complainant alleged in (1) and (6) to support his harassment claim are within the 45-day statutory time-frame from December 30, 2009 (no earlier than November 15, 2009), therefore rendering the entire hostile work environment claim timely raised.1
We further find that Complainant has stated a cognizable claim of harassment when considering (1) through (6) as supporting discriminatory incidents. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Considered together, we conclude that Complainant's allegations, if proven true, suggest that he may have been subjected to severe or pervasive harassment that altered the conditions of his employment.
Accordingly, because we find that Complainant stated a timely, cognizable hostile work environment claim, we REVERSE the dismissal of the complaint and REMAND the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded harassment/hostile work environment claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded harassment claim 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 (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 (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 (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
__December 16, 2010___
Date
1 However, to the extent that the incidents in (2) through (5) are additionally offered as discrete acts of alleged discrimination, they are untimely raised. Therefore, while they must be considered in assessing his hostile work environment claim, they cannot be the subject of individual equitable remedies (such as, backpay for lost overtime).
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0120102830
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102830