Anna Lopez, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Administration, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01992955 (E.E.O.C. Jan. 12, 2000)

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.