01A31150_r
05-27-2003
Lydia Hodges, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Lydia Hodges v. Social Security Administration
01A31150
May 27, 2003
.
Lydia Hodges,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A31150
Agency No. 02-0480-SSA
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 14, 2002, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic),
sex (female), and age (over 40) when:
Management subjected complainant to non-sexual harassment and a hostile
work environment. Specifically, on May 27, 2002, complainant's District
Manager placed her on a Performance Assistance Plan.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(4), for electing to pursue the
matter under a negotiated grievance procedure which allows allegations
of discrimination. The agency noted that complainant filed a formal
grievance under the National Agreement on June 7, 2002. The agency
noted that the grievance proceeded to Step 3 and a decision was issued
on August 20, 2002.
On appeal, complainant states that the issues raised in the grievance are
distinct from the issues raised in the EEO process. Complainant claims
that the issues raised in the grievance concern only the improper denial
of a career ladder grade increase. Complainant notes that the grievance
contends that her performance was satisfactory and that she met the
criteria for the career ladder grade increase. Complainant states,
however, that the EEO complaint charges that she is being subjected to
a hostile work environment. Complainant states that the withholding
of the career ladder grade increase was one example of the hostile
work environment and that the agency's placement of her on a PAP
was another example of the harassment. Complainant notes that the
union attempted to incorporate all issues into her EEO complaint to
substantiate the hostile work environment claim. Complainant cites the
following incidents of harassment: (1) complainant was not allowed quiet
time to work on her backlog despite the fact that other employees were
given this opportunity; (2) complainant spent a great deal of extra time
assisting other interviewers with Spanish speaking clients yet was given
no consideration for these extra duties; (3) complainant was not allowed
to work overtime despite a crushing workload; (4) complainant was not
allowed to work credit hours; (5) others in the same office had similar
backlogs of work yet did not have their grade or step increases withheld;
(6) management routinely criticized complainant in front of her peers;
(7) management not only condoned but actively encouraged complainant's
peers to verbally criticize her work.
The record contains a copy of complainant's Step 1 grievance dated
June 7, 2002. In this grievance, complainant challenges the agency's
refusal to give her a career ladder grade increase. Further, complainant
disagrees with the agency's May 27, 2002 action in implementing a PAP.
In her requested relief, complainant requests to be removed from the
PAP, to be granted the career ladder increase, for management to cease
harassing her and discontinue the 100% review of her work, a fully
satisfactory rating, and to be treated fairly and equitably by management.
The record contains a copy of the August 20, 2002 Step 3 grievance
decision which addresses the denial of complainant's career ladder
increase, the placement of complainant on a PAP and the alleged harassing
behavior by management.
The record reveals that complainant filed an EEO complaint on September
5, 2002. According to the EEO Counselor's report, complainant alleged
that she is being subject to harassment with regard to a May 27, 2002 PAP.
Complainant's requested relief included removal of the PAP, career ladder
grade increase, discontinuation of the 100% review, a fully satisfactory
rating, to be treated fairly and equitably by management, and sensitivity
training for management.
In an August 20, 2002 e-mail, complainant requested the following
�additions� to the EEO Counselor's report. Complainant requested that
placing her on a PAP be considered a form of harassment. Specifically,
complainant stated that there are other employees in the field office
with perceived performance issues that have not been placed on a PAP.
Complainant argues that the whole PAP process was unjustified as
management did not make attempts to address complainant's requests
for �down time� to help her backlog that management used to justify
her placement on PAP. Complainant noted that other employees who have
backlogs are allowed to work credit hours and overtime to catch up but
she was not allowed these opportunities. Further, complainant stated that
management criticized her in front of other employees and has heard fellow
employees criticize complainant but failed to take corrective action.
Finally, complainant states that she is often used to interpret and
conduct interviews in Spanish but is never treated as an asset.
Upon review, we find that the agency properly dismissed complainant's
complaint for raising the same matters in a grievance process. The record
contains a copy of the collective bargaining agreement which permits
claims of discrimination to be raised in the agency's negotiated grievance
procedure or the statutory (EEO) process, but not both. After a review of
the record, the Commission finds that the alleged hostile work environment
claim is related to or involves actions inextricably intertwined with
the matters that have been addressed in the Step 3 Grievance Decision.
Specifically, we find that the �additions� to complainant's complaint
are part of the hostile work environment claim challenging management's
actions concerning her performance and subsequent placement on a PAP
which were raised during the grievance process. Furthermore, we note
that the Step 3 decision specifically addresses complainant's claim that
she was subjected to a hostile work environment. Thus, we find that
complainant elected to raise the issues of harassment and her placement
on the PAP in the negotiated grievance procedure, and now is precluded
from raising the same matters in the EEO process.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
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
May 27, 2003
__________________
Date