01992955
01-12-2000
Anna Lopez, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Administration, Agency.
Anna Lopez, )
Complainant, )
)
v. ) Appeal No. 01992955
) Agency No. 990150SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Administration, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The final agency decision was
dated January 26, 1999. The appeal was postmarked February 24, 1999.
Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
appeal.
BACKGROUND
The record indicates that on October 27, 1998, complainant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On January 12, 1999, complainant
filed a formal complaint. She alleged that she was the victim of unlawful
employment discrimination on the basis of sex (female) when her supervisor
created a hostile work environment for her.
On January 26, 1999, the agency issued a final decision dismissing
the complaint for untimely EEO contact and failure to state a claim.
Specifically, the agency found that the complainant waited 49 days before
contacting the EEO counselor about September 8 and 10, 1998 incidents
in which the District Office Manager (DOM) allegedly questioned her
leadership of and motives regarding the Employee Involvement Training
(EIT) Initiative . Also, the agency found that the complainant was
not harmed by any of the incidents, including a later October 27, 1998
incident in which the DOM allegedly accused her of producing an insincere
appraisal of the EIT initiative.
ANALYSIS AND FINDINGS
EEOC regulations provide that an aggrieved person must initiate contact
with a counselor within 45 days of the alleged discriminatory event.
29 C.F.R. � 1614.105(a)(1). This time limit shall be extended if the
complainant shows that she did not know about these time limits, she did
not know or reasonably should not have known that the discriminatory
matter occurred, or for other sufficient reasons. 29 C.F.R. �
1614.105(a)(2). The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) for determining
whether contact with an EEO Counselor is timely. Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Under this standard,
the regulatory limitations period "is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that would
support a charge of discrimination have become apparent." Bracken
v. U.S. Postal Service, EEOC Request No. 05900065 (March 29, 1990).
As soon as the complainant reasonably suspects discrimination, the 45
day time period begins to run. Peets v. US Postal Service, EEOC Request
No. 05950725 (March 28, 1996).
Complainant alleges that she did not realize that the events on
September 8 and 10, 1998 were discriminatory until October 8, 1998.
The complainant does not state what triggered her reasonable suspicion
of discrimination at this time, and we cannot find any reason why the
suspicion would not have arisen when the incidents occurred. In fact,
in her Comments in Support of the Appeal, the complainant states that
the harassment against her had continued for at least the past two years.
Also, she states �September 8, 1998 is a specific given date in which this
harassment has escalated.� The Commission finds that the complainant
should have reasonably suspected discrimination on September 8, 1998,
and she should have initiated EEO contact within 45 days from that time.
Therefore, complainant made untimely EEO contact with respect to the
incidents on September 8 and 10, 1998.
Next, the complainant alleges the September 8 and 10, and October 27,
1998 incidents state a claim of discriminatory hostile work environment.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment allegations,
when considered together and assumed to be true, were sufficient to state
a hostile or abusive work environment claim. See Miller v. U.S. Postal
Service, EEOC Request No. 05941016 (June 2, 1995).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment allegations are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that allegations of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal
Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Also, the trier of fact must consider all of the circumstances, including
the following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In this case, the complainant has only described a few isolated incidents
over the past two years of alleged discrimination. On September 8 and
10 and October 27, 1998 the alleged remarks made by her supervisor were
unaccompanied by concrete action and did not harm the complainant's job.
The incidents were not severe or pervasive enough to create a hostile
work environment. According to the information in the affidavit, the
conduct only occurred on these three days, was not physically threatening
or humiliating, and did not interfere with her work. Therefore, the
complainant is not an aggrieved employee for the purposes of Title VII.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
01/12/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.