0120063598
05-17-2007
Lee A. Hazen, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lee A. Hazen,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200635981
Agency No. 03-0178-SSA
DECISION
On May 25, 2006, complainant filed an appeal from the agency's April 23,
2006, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted for the Commission's de novo
review pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Claims Representative at the agency's Field Office facility in
Grand Isle, Nebraska. On February 4, 2003, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of
reprisal in connection with the EEO complaint filed by her husband,
an agency employee at the same facility, for his protected EEO activity
(arising under the Rehabilitation Act) when:
1. the Assistant District Manager (ADM) was constantly eavesdropping on
her conversations in an attempt to catch her not working;
2. on November 26, 2002, the ADM unilaterally decided that no personal
items may be displayed on top of employees' cubicles, and as a result,
the ADM moved some of the personal items in her cubicle after she had
left for the day;
3. on December 2, 2002, the ADM unilaterally decided to reserve the
first four parking spaces outside the office door for management and one
physically disabled employee, and the ADM made this decision without
negotiating it with the Union. On at least one occasion, she made
complainant move her car to comply with this decision;
4. on December 3, 2002, the ADM ruled that personal space heaters must
be turned off when employees are away from their desks, and this was
not the case at the previous office location;
5. also on December 3, 2002, the ADM also ruled that employees' coats
may not be hung inside their cubicles, and this was not the case at the
previous office location;
6. on December 10, 2002, the ADM spoke to her in a derogatory fashion
regarding a visit from her daughter, and the ADM informed complainant
that visitors should not use the emergency egress door;
7. shortly after this encounter, the ADM unilaterally decided that no one,
including employees, would be allowed to use the emergency egress door;
8. on January 6, 2003, the ADM directed the Management Support
Specialist (MSS) to tell complainant to sign out at 5:30 p.m. to avoid
overtime. Complainant informed the MSS that she was donating time in
order to clear a case and was not requesting overtime. As a result,
the ADM directed the MSS to develop strict time and attendance rules.
At the conclusion of the investigation, complainant was provided 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) concluding that complainant failed to prove that she had
been harassed in reprisal for her husband's EEO activity or subjected to
discrimination as alleged. The agency noted that all the events listed
by complainant occurred after the agency moved offices to a new location,
and that complainant and the supervisor who is alleged to have engaged
in the harassment have had a longstanding personality conflict, which
predates complainant's husband's EEO activity.
After a thorough review of the record, and the arguments submitted
by the parties on appeal, we find that the agency's conclusion that
complainant has not shown that she was retaliated against was correct,
and we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
5-17-07
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120063598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063598