0120110555
12-02-2011
Tammy R. Brigham, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Tammy R. Brigham,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110555
Agency No. ATL-10-0809SSA
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 27, 2010, 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. Upon review, the Commission finds that Complainant's complaint
was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Service Representative at the Agency’s Field Office in Memphis,
Tennessee. On August 21, 2010, Complainant filed a formal complaint
alleging that the Agency discriminated against and subjected her to a
hostile work environment in reprisal for prior protected EEO activity
when:
1. On August 11, 2009, Complainant received a Record of Counseling
Interview from management for 10 incidents involving disruptive workplace
behavior;
2. On September 9, 2009, Complainant was issued a Record of Counseling
interview from management for an alleged physical altercation that she
claims did not occur;
3. On October 15, 2009, Complainant received a Record of Fact-Finding
Interview from management for conduct unbecoming a federal employee and
failure to follow the rules and regulations for requesting and obtaining
approved leave;
4. On November 23, 2009, management issued Complainant a Proposal to
Suspend Notice and she was suspended from February 1, 2010 to March
10, 2010.
In its September 27, 2010 final decision, the Agency dismissed the
complaint pursuant to 29 CFR § 1614.107(a)(2) for untimely EEO Counselor
contact. The Agency determined that Complainant’s initial EEO Counselor
contact occurred on July 23, 2010, which was beyond the 45-day limitation
period from the dates the alleged discrimination occurred. As a result,
the Agency dismissed the complaint for untimely EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that shortly after her reassignment to
the office, her every move was watched and documented by management.
Further, Complainant argues that she was falsely accused of aggressively
bumping a co-worker. In addition, Complainant disputes the altercation
which led to her suspension. Accordingly, Complainant requests that
the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
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. 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.
EEOC Regulations provide that the Agency or the Commission shall extend
the lime limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the Agency properly dismissed Complainant’s
complaint on the grounds of untimely EEO Counselor contact. The Supreme
Court has held that a hostile work environment claim is an amalgamation
of incidents that “collectively constitute one unlawful employment
practice.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117 (2002). Because a hostile work environment claim is comprised
of various incidents, the entire claim is actionable if at least one
incident occurred within the filing period. Here, however, the record
discloses that the last alleged discriminatory event occurred on February
1, 2010, but Complainant did not initiate contact with an EEO Counselor
until July 23, 2010, which is 172 days beyond the 45-day limitation
period. On appeal, Complainant has presented no persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Accordingly, the Agency's final decision dismissing
Complainant's complaint 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 (Nov. 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
December 2, 2011
Date
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0120110555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110555