Marlene Morris, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01985895 (E.E.O.C. Feb. 4, 2000)

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.