01A31197_r
12-09-2003
Alice M. Shank, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Alice M. Shank v. Social Security Administration
01A31197
December 9, 2003
.
Alice M. Shank,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A31197
Agency No. 96-0545-SSA
Hearing No. 120-A1-4380X
DECISION
Complainant appealed to this Commission from the agency's October 25,
2002 final order implementing an EEOC Administrative Judge's (AJ's)
decision to dismiss her complaint. In her complaint, complainant alleged
discrimination on the basis of reprisal for prior EEO activity when:
In 1994, complainant was subjected to sexual harassment by her supervisor;
and
From January 1994 through July 1996, complainant was subjected to a
hostile work environment when:
(a) Complainant suffered from hostilities and deliberate exclusion
from job-related meetings; and
Supervisors made negative comments about complainant, such as: �When
I'm gone, make sure you tell [complainant] thanks for costing me my
job;� �Everyone knows that [complainant] doesn't have any judgment or
any sense;� and �Tell [complainant] I'm going to lower her appraisal if
she doesn't stop spreading rumors.�
The present appeal marks the third time this Commission has addressed the
present complaint. Initially, complainant appealed from the agency's
December 30, 1996 decision to dismiss complainant's entire complaint
for untimely counselor contact. The Commission vacated the agency's
decision, and ordered it to perform a supplemental investigation into
whether complainant actually stated a continuing violation of ongoing
harassment. Shank v. Social Security Administration, EEOC Appeal
No. 01972285 (Oct. 9, 1997).
On remand, the agency once again dismissed the complaint for untimely
counselor contact, finding that complainant should have been aware
of the alleged discrimination within forty-five days of the incident
occurrences. In this second decision, dated February 4, 1998, the agency
also dismissed the complaint for alleging matters previously raised in
Agency No. 96-0281-SSA. To further bolster its dismissal, the agency
noted that complainant settled Agency No. 96-0281-SSA on July 30, 1996,
and agreed to withdraw any complaints pending at the time of settlement.
Complainant appealed the February 4, 1998 dismissal. The Commission
affirmed the agency's untimely counselor contact dismissal for claim
(1), and its same claim dismissal for claim (2)(a). Shank v. Social
Security Administration, EEOC Appeal No. 01982800 (Apr. 2, 1999).
The Commission specifically found that complainant failed to state a
continuing violation, but ordered the agency to conduct a supplemental
investigation regarding when the incidents from claim (2)(b) occurred.
Id. The Commission instructed the agency to treat all claims occurring
within forty-five days of complainant's July 6, 1995 counselor contact
as timely. The Commission never addressed whether the incidents from
complainant's complaint were subject to the July 30, 1996 settlement
agreement. See id.
On the second remand, the agency conducted a supplemental investigation
to determine the exact dates of the incidents described in claim (2)(b).
The parties agreed that the Counselor's Report correctly placed
the comments from claim (2)(b) as occurring in 1994. In addition,
complainant provided a chronology of the incidents complainant believed
were part of her hostile work environment claim. On August 24, 2000,
the agency accepted a hostile work environment claim for investigation,
noting that further clarification of the claim would be provided through
the investigative process. At the conclusion of the investigation,
complainant requested a hearing from an EEOC Administrative Judge (AJ).
Upon review of the record, the AJ issued a decision without a hearing
on September 18, 2002. She reiterated the Commission's dismissals of
claims (1) and (2)(a). With respect to claim (2)(b), the AJ found that
complainant failed to timely raise the allegedly hostile actions with
an EEO Counselor. Further, the AJ ruled that claim (2)(b) could not
proceed because the incidents occurred prior to complainant's July 30,
1996 settlement of Agency No. 96-0281-SSA. The AJ noted that complainant
had begun the process for her hostile work environment claim when the
settlement was signed.
ANALYSIS AND FINDINGS
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). 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.
In her chronology of events, complainant makes it clear that the
derogatory statements and belittling actions she refers to in claim
(2)(b) occurred in 1994. The most recent �negative comment� cited by
complainant in her chronology occurred on July 6, 1994. She has not
shown a continuing pattern of harassment from management in her remaining
claim that extended to her 1995 counselor contact. Accordingly, the AJ's
dismissal of claim (2)(b) for untimely counselor contact was proper.<1>
CONCLUSION
Accordingly, the agency's final order 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
December 9, 2003
__________________
Date
1The Commission notes that the record
does not include a copy of the July 30, 1996 settlement agreement.
Regardless, the Commission need not address whether the hostile work
environment claim was preempted by complainant's release in her July 30,
1996 settlement agreement, because it affirms the AJ's untimely counselor
contact dismissal.