Socorro R. Gallegos, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01A45501 (E.E.O.C. Nov. 24, 2004)

01A45501

11-24-2004

Socorro R. Gallegos, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Socorro R. Gallegos v. Social Security Administration

01A45501

November 24, 2004

.

Socorro R. Gallegos,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A45501

Agency No. 04-0321-SSA

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. Complainant alleged that she was subjected to a

hostile work environment on the bases of race (Hispanic), national origin

(Hispanic), sex (female), and reprisal for prior EEO activity when:

her supervisor (S1: male, race and national origin unknown) approached

her from behind while both of them were alone in the photocopier room,

called out her name and placed both his hands on her shoulders, causing

her to lose balance and fall and injure her neck and shoulder;

S1 repeated this behavior on another occasion;

after issuing complainant a letter of reprimand for an unrelated matter,

S1 physically blocked the exit, preventing complainant from leaving;

S1 verbally threatened complainant for working three credit hours,

which was one-half hour more than allowed by office policy;

management threatened complainant with insubordination after a case was

misplaced and could not be located;

S1 threatened complainant with a reprimand because she had undertaken

decision mail outs without his consent; and

A Lead Case Technician (sex, race, and national origin unknown) forwarded

anonymous statements accusing Hispanic workers of taking extended lunch

hours and breaks, accused them of making mistakes, and demeaned the

intelligence of an unidentified Hispanic employee.

In its Final Agency Decision (FAD), the agency dismissed complainant's

complaint for failure to state a claim, finding that complainant did not

show she had suffered a harm or loss with respect to a term, condition, or

privilege of employment or that �the alleged harasser made any personal

or sexually laden comments� to complainant. From the agency's FAD,

complainant appeals.

We note that complainant alleges that S1 engaged in unwelcome physical

touching. The Commission has previously found that an allegation of

unwelcome physical touching states a hostile work environment claim

under Title VII. See Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997); Osborne v Department of the Treasury,

EEOC Request No. 05960111 (July 19, 1996). In addition, we note that

complainant alleges a series of incidents occurring over approximately a

two month period. Given such a relatively concentrated period of time, as

well as the fact that S1 allegedly engaged in unwelcome physical touching,

we find that complainant's contentions do state a claim. Accordingly, the

agency's final decision dismissing complainant's complaint is reversed.

The complaint is hereby remanded to the agency for further processing

in accordance with this decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (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 (R0900)

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 (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

November 24, 2004

__________________

Date