01A20054_r
02-11-2002
Veronica Valencia, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Veronica Valencia v. Social Security Administration
01A20054
February 11, 2002
.
Veronica Valencia,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A20054
Agency No. 06-21-01
DECISION
Complainant timely appeals the agency's August 13, 2001 decision
dismissing complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. According to the agency decision,
complainant alleged that she was discriminated against on the basis of
reprisal when management altered an award letter dated March 6, 2001.
The agency dismissed the complaint for failure to state a claim finding
that, first, complainant is not aggrieved, and second, that complainant
is not part of the protected class of which she alleges discrimination.
First, the agency misdefined complainant's claim. Complainant, at the
time of the alleged discrimination, represented the union on the awards
panel. According to a statement by complainant dated September 6,
2001, the awards panel was responsible for writing and giving awards.
Complainant learned that some of the award letters were altered and
distributed without complainant's knowledge. Complainant alleges that
she has been targeted and blamed since the incident. According to the
complaint and EEO Counselor's report, complainant alleges that she was
discriminated against when her supervisor �took her off the phone while
working overtime from 5:30 p.m. - 6:30 p.m.� Complainant also argues
that she was accused of �not taking her breaks within the scheduled
break bands.� Therefore, we find that complainant alleges one claim
of harassment. However, we find that complainant has not shown that
she has been subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of employment.
Since complainant's claim is properly dismissed for failure to state
a claim, we will not determine whether complainant is a member of a
protected class in which to base her claim.
The agency's decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 11, 2002
__________________
Date