01985895
02-04-2000
Marlene Morris, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Marlene Morris, )
Complainant, )
)
v. ) Appeal No. 01985895
) Agency No. 98-0340-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
____________________________________)
DECISION
On July 29, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on July 6, 1998, pertaining
to 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 Commission accepts complainant's appeal in accordance
with EEOC No. 960.001.
According to the EEO Counselor's report, complainant initiated contact
with an EEO Counselor on October 29, 1997. During the counseling period,
complainant claimed several instances of harassment both sexual and
non-sexual in nature, occurring from September 1992 thru November 21,
1997. Attempts to informally resolve the above matters failed, and on
March 5, 1998, complainant filed a formal complaint.
On July 6, 1998, the agency issued a final decision. Therein, the
agency found that complainant's complaint was comprised of five claims
that were identified in the following fashion:
1. From September 1992 though February 13, 1997, you were subjected
to discussions, by a former supervisor regarding the intimate details
of an extramarital affair he was having;
2. Between May 15, 1995 through June 11, 1997, an Administrative Law
Judge furnished a letter from an attorney, to an employee, questioning
your conduct rather than giving the letter to you or to the Acting
Chief Administrative Law Judge;
3. On June 11, 1997, an employee requested that an investigation be
conducted regarding you. You believe that this investigation was
instigated by your former supervisor;
4. On June 23, and June 24, 1997, you were the subject of questioning
by an EEO Counselor for your former supervisor; and
5. On November 21, 1997, a grievance with the union was filed alleging
the Office of Hearings and Appeals management has created a hostile work
environment, which exhibits anti-union animus toward union officials
and union members and those supplying testimony in the EEO complaint
of your former supervisor. You state that the grievance is directed
toward you at the instigation of your former supervisor.
The agency dismissed claims one through four, for failure to initiate
timely contact with an EEO Counselor. The agency found that claims one
through four occurred on and before June 24, 1997, and the complainant's
initial EEO contact on October 29, 1997, was more than forty-five days
after the acts purportedly occurred. Furthermore, the agency dismissed
allegation five for failure to state a claim.
On appeal, complainant argues two points. First, complainant argues
that the agency committed an error when they viewed her complaint
in a piecemeal fashion as opposed to an overall claim of harassment.
And second, complainant argues that she in fact contacted an EEO Counselor
on August 5, 1997, in an effort to initiate the EEO process.
Having reviewed the entire record, the Commission dismisses claims
two, three, four and five for failure to state a claim. Volume 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall
accept a complaint from any 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. Department
of the Air Force, EEOC Request No. 05931049 (April 22, 1994).
With regard to claims two, three, four and five, complainant failed
to establish how she suffered a present harm or loss with respect
to a term , condition, or privilege of employment for which there is
a remedy. Moreover, claims three, four and five, in essence, involve
the filing of discrimination complaints. Complainant is not aggrieved
by being identified in other employees' complaints. The Commission
has previously held that the filing of an EEO complaint by another
individual does not constitute an injury by the agency to a term,
condition or privilege of employment. To allow the processing of a
complaint by an employee, wherein the employee challenges the filing of
an EEO complaint by a co-worker or other agency employee, would have a
chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194
(May 26, 1994)(manager's complaint filed against a complainant does
not render the complainant aggrieved). We have also held that such
a complaint constitutes a collateral attack on another EEO matter.
Smith v. Department of Veterans Affairs, EEOC Appeal No. 01951545 (May
17, 1995), req. to recons. den. EEOC Request No. 05950694 (April 4,
1996). Moreover, there is no remedial action available to complainant
when another individual files an EEO complaint, as the agency has no
authority to restrain an employee from raising EEO violations through
the EEO complaint process. See Carroll v. Department of the Army, EEOC
Appeal No. 01975910 (May 22, 1998), req. to recons. den. EEOC Request
No. 05980825 (January 22, 1999); Calloway v. Department of the Army,
EEOC Appeal No. 01943406 (July 15, 1994). Accordingly, claims two,
three, four and five fail to state a claim.
With respect to claim one, the Commission affirms the dismissal of this
claim for failure to initiate timely contact with an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Complainant initiated contact with an EEO Counselor on October 29, 1997,
more than forty-five days after the incidents cited in claim one which
purportedly occurred from September 1992 through February 13, 1997.
Even assuming that complainant contacted a Counselor on August 5,
1997, this contact is still beyond the limitation period. Finally,
while complainant contends that the incidents constitute a continuing
violation, since there is no viable claim occurring within forty-five days
of her EEO contact, she failed to establish a valid continuing violation.
See Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22,
1999); McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990). Accordingly, claim one was properly dismissed for
failure to initiate timely contact with an EEO Counselor.
CONCLUSION
The agency's final decision dismissing complainant's complaint is AFFIRMED
for the reasons set forth herein.
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:
February 4, 2000
____________________________
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 of mailing. I certify that
the 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.