0120162223
10-27-2016
Nancey D.,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
Nancey D.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120162223
Agency No. BOS160250
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 23, 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
At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor (GS-13) with the Agency's Office of Disability Adjudication and Review ("ODAR") in Providence, Rhode Island.
On April 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the basis of sex (female) when, on November 20, 2015, she learned that since 2010, she had been passed over for mentoring assignments in favor of her male colleagues, which resulted in lower performance ratings.
It was standard practice for the ODAR Management Team to assign senior attorneys as mentors for other employees. Between 2010 and 2015, eight employees were assigned to senior attorneys for mentoring. Senior attorneys could use official time to engage in mentoring activities, and their efforts as mentors were considered positively in performance ratings and in determining awards. Complainant realized that as the only female senior attorney in the office, she was getting passed over for mentoring assignments, when, on November 20, 2015, an employee who specifically requested her as a mentor was assigned to another senior attorney (male) instead.
Complainant met with her Group Supervisor ("S1") on December 11, 2015. S1 explained that Complainant had not been considered for any of the mentoring assignments because she was the "least productive senior attorney in the office" and due to Complainant's "time-management issue." Complainant, who had been rated "fully successful" or higher in all of her past performance ratings, believed this was further indication of discrimination and pursued the instant complaint.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
Our regulations provide that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits. See 29 C.F.R. �1614.107(a)(2) Under 29 C.F.R. �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The agency or the Commission may extend the time limit pursuant to 29 C.F.R. �1614.105(a)(2), if the complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
We find that "reasonable suspicion" of discrimination existed on November 20, 2015, when Complainant became aware that she was passed over for the mentoring assignment in favor of a male colleague. However, Complainant did not initiate contact with an EEO Counselor until January 7, 2016, which is beyond the 45 day limitation period. On appeal, Complainant does not dispute that she became aware of the alleged discrimination on November 20, 2015. Instead, she argues that the Agency erred, and should have calculated the limitation period based on the December 11, 2015 meeting with S1, which she alleges was an act of ongoing discrimination.
As the Agency aptly argued in its opposition, the December 11, 2015 meeting does not constitute a separate or ongoing act of discrimination because Complainant failed to demonstrate a tangible adverse employment action per our regulations. Further, Complainant's argument that the December 11, 2015 meeting provided her with proof of "pretext" for discrimination improperly speaks to the merits of the complaint and does not itself indicate an additional act or ongoing discrimination. Regardless of the alleged evidence provided in the December 11, 2015 meeting, as it was not an additional act of discrimination, the proper date for establishing timely EEO contact is November 20, 2015, which Complainant's reasonable suspicion arose.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 (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
October 27, 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
0120162223
2
0120162223
5 0120162223