0120170580
04-14-2017
Jenee W.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jenee W.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170580
Agency No. NY-16-0832-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 2, 2016, 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.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative at the Agency's West Farms Field Office facility in Bronx, New York.
On August 8, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On September 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Dominican) and sex (female).2
In its final decision, dated November 2, 2016, the Agency determined that the formal complaint was comprised of the following claim:
In or around March 2016, management harassed Complainant by making defaming comments about her to co-workers, making insulting remarks directly to her, failure to ensure the safety of her automobile in the parking area, failing to ensure her safety by distributing letters without return addresses, and by denying a separate mailbox request.
The Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on August 8, 2016 and that "calculating from the latest possible date, March 31, 2016, Complainant contacted the EEO Counselor 131 days later, well beyond the 45-day time limit."3 The Agency further noted that email correspondence with Complainant and her representative failed to provide any alleged incidents that occurred within the 45 day time limit.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the Complainant knew or should have known were actionable at the time of their occurrence. EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005).
Here, at least one of the alleged incidents occurred within the applicable time period. Complainant alleges, in part, that her car was vandalized in the gated, secured, employee only parking lot on three separate occasions and that management failed to take appropriate action. One of the dates Complainant is alleging that her car was vandalized was on June 24, 2016. The record contains a copy of a New York City Police Department complaint form reflecting that Complainant alleged her car was vandalized on June 24, 2016, and that this was the third incident at the same location. In addition, the record contains an email from the Union President to the District Manager dated June 27, 2016. Therein, the Union President sets forth that Complainant is alleging her car was vandalized in the employee parking lot on June 24, 2016. This alleged incident occurred 45 days before Complainant's initial EEO contact on August 8, 2016. Thus, since one of the alleged incidents occurred within the applicable time period, Complainant timely initiated EEO contact with respect to her overall harassment claim.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 14, 2017
__________________
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 In its final decision, dated November 2, 2016, the Agency did not include reprisal as one bases of discrimination that Complainant is alleging. The Agency noted that Complainant is alleging that she was retaliated against for being a union representative and did not indicate that it was based on protected EEO activity. On appeal, Complainant does not expressly contest this matter. Thus, we decline to address further herein the basis of reprisal.
3 We note that, in the EEO Counselor's Report, Complainant alleged that the harassment occurred from March 2016 to the present. EEO Counselor's Report at 3.
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