0120142059
10-02-2014
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120142059
Agency Nos. HQ-14-0026-SSA & DEN-14-0020-SSA
DECISION
On April 29, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 27, 2014, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency's Trinidad, Colorado Field Office.
Complainant contended that in a December 2012 meeting, her union representative's management team questioned him on his request for 25.5 hours of official time to work on an equal employment opportunity (EEO) complaint she filed.
Thereafter, in February 2013, Complainant filed EEO complaint KC-13-0235-SSA alleging a discriminatory hostile work environment in violation of Title VII and the ADEA when managements' questioning above revealed it received private information about her complaint from the Agency's Denver Civil Rights and Equal Opportunity Office (Denver CREO). In Baca v. Social Security Administration, EEOC Appeal No. 0120131555 (Aug. 6, 2013), the EEOC affirmed the Agency's dismissal of this complaint on the grounds that it alleged dissatisfaction with the processing of a previously filed complaint. 29 C.F.R. � 1614.107(a)(8).
In May 2013, Complainant filed EEO complaint KC-13-0460-SSA, alleging discrimination when the Agency denied her union representative the right to work on EEOC Appeal No. 0120131555.
On January 10, 2014, Complainant, who is a union official, filed EEO complaint HQ-14-0026-SSA (Complaint 1) alleging that she learned on September 19, 2013, that she was subjected to discriminatory harassment based on reprisal for prior protected EEO activity under Title VII and the ADEA when in interviewing her on complaint KC-13-0460-SSA, an EEO Investigator revealed she secured papers dated in February 2013 containing her Personally Identifiable Information (PII). The papers documented her request for union official time via the Agency's electronic union official time system (OUTTS), and credit hours for the same. They were obtained with the help of the Director of the Kansas CREO. According to Complainant, the EEO Investigator told Complainant the Agency used the documentation to substantiate that she also requested EEO official time to work on EEOC Appeal No. 0120131555 (as had her union representative).1 Complainant contended these papers actually pertained to her request for official time to attend an AFGE Legislative Conference, and were unrelated to the appeal.
According to the Kansas CREO, the EEO Investigator requested her assistance to obtain all official time requests for Complainant and her union representative for EEO Complaint KC-13-0235, both before and after the appeal was filed. Complainant contends that the Kansas CREO attempted to secure documentation on all her union and EEO official time requests, regardless of case number, in an attempt to find documentation that she already performed the work her union representative was requesting official time to do. Complainant contended that the Director of the Kansas CREO was attempting to keep her out of Kansas CREO business since she lived in Denver.
On February 20, 2014, Complainant filed EEO complaint DEN-14-0020-SSA (Complaint 2), alleging the same issues as Complaint 1, but adding the bases of age (43), sex (female), and race (Hispanic).
In its FAD the Agency consolidated Complaints 1 and 2. The Agency dismissed Complaint 2 for failure to timely file the complaint. It dismissed Complaints 1 and 2 for alleging dissatisfaction with the processing of a previously filed complaint. The Agency found that the Commission does not have jurisdiction over Complainant's claim that it violated the Privacy Act. Finally, it found that Complaints 1 and 2 did not state a viable claim of harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
Complainant signed the notice of right to file Complaint 2 on January 22, 2014. The Agency wrote therein that Complainant must file her formal complaint within 15 calendar days after receiving the notice, and provided two addresses for doing so. She filed her complaint by letter postmarked February 20, 2014, beyond the 15 day time limit. Accordingly, the Agency's dismissal of Complaint 2 for failure to timely file the complaint is affirmed. We note, however, that this is of little consequence because Complaint 2 simply added bases of discrimination to the issues Complainant already raised in Complaint 1. Complainant was free to add or delete bases to Complaint 1. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970). Since this was apparently her intent, we construe Complainant's action to have done this - to add the bases of age, sex and race to Complaint 1.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss an entire complaint that alleges dissatisfaction with the processing of a previously filed complaint.
Complainant is alleging dissatisfaction with the processing of her prior complaints in Complaint 1. Specifically, she is alleging that the Director of the Kansas CREO facilitated the release of her official time records, which contained PII, to the EEO Investigator, even though this information was unrelated to the issue in EEO Complaint KC-13-0460-SSA and EEOC Appeal No. 0120131555. This falls within the ambit of 29 C.F.R. � 1614.107(a)(8).2
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
October 2, 2014
__________________
Date
1 While Complainant alleged this comment amounted to an accusation of misuse of official time by her and her union representative which is fraud, she did not contend that anyone in management actually accused her of fraud.
2 As we have affirmed the dismissal of Complaints 1 and 2 on the grounds recounted above, we need not address the Agency's other grounds for dismissing these complaints.
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0120142059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142059