0120160857
05-04-2016
Berry K.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Berry K.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160857
Agency No. ATL150995SSA
DECISION
Complainant timely appealed to this Commission from the Agency's December 3, 2015 dismissal of his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative (GS-11) at the Agency's field office in Columbus, Georgia.
On October 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the basis of disability (back impairment) when, on September 1, 2015, he submitted a sick leave request and was informed he was assigned a client on the board.
On September 1, 2015, Complainant, a disabled veteran, experienced a back spasm after arriving to work that morning. He alleges his disability is common knowledge among other employees; he sometimes requires a cane and has undergone four surgeries. By 2:40 PM, he was in substantial pain, so he submitted a leave request for 2:50 PM to 3:30 PM, the remainder of his shift.
Also on September 1, 2015, Complainant conducted a phone interview with a client who wanted to discuss her claim in person. The field office was accepting walk-ins so Complainant informed the client she could come in. Around the time Complainant requested leave, the Technical Expert ("TE") in charge of intakes informed Complainant that the client was waiting in the lobby and was assigned to him (per Agency policy, as he took the initial phone intake). Complainant made clear that he had no desire to meet with the client, allegedly informing TE repeatedly that the client "is going to have to [expletive] off." TE informed Complainant's first line supervisor ("S1"), and offered to meet with the client himself. S1 declined, and went to Complainant's desk around 2:49 PM, allegedly unaware of his leave request or back pain. S1 told Complainant that the client was assigned to him and had been waiting for two hours, which Complainant had not realized.
Complainant told S1 about the leave request, but S1 only responded that the client's name was on the VIP board and was assigned to Complainant. Complainant then sent an instant message to the Assistant District Manager ("S2"), which is when he alleges "the delay tactics" began. Specifically, S2, also allegedly unaware of Complainant's back pain, asked Complainant to come to his office, and if the leave request was due to S1 assigning him the client, given both were within minutes of each other. Complainant became very frustrated, believing the "back and forth" was unnecessary as all that was required was for the request to be approved. He alleges that other employees are not subjected to the same scrutiny when they request leave. Complainant left approximately ten minutes after placing his leave request, without stopping by S2's office, and without waiting for it to be approved.
On September 2, 2015, Complainant met with S2 and apologized for how he handled the situation and S2 retroactively approved the September 1, 2015 leave. Complainant also sent a letter recounting the incident to the Agency's Commissioner with the subject "Discrimination based on being Latino;" and initiated contact with an EEO Counselor for the instant complaint, alleging discrimination on the basis of disability.2
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Complainant does not allege that he was disciplined or otherwise affected when he refused to follow S1 and S2's instructions or when he left the premises before his leave request had been approved. To the extent that Complainant alleged that he was subjected to greater barriers to obtaining approval for leave than other employees, he has not alleged incidents sufficiently severe or pervasive to assert a viable hostile work environment claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M
Carlton M. Hadden, Director
Office of Federal Operations
May 4, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 On appeal, Complainant indicates that he also wants to add National Origin as a basis for discrimination to his formal EEO complaint. The addition of national origin as a basis for the alleged discrimination has no impact on the outcome of this Decision, which is limited to the procedural matter of whether Complainant is an "aggrieved employee" able to state a viable claim.
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