0120113439
02-10-2012
Cheryl M. Wood, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cheryl M. Wood,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120113439
Agency No. NY-11-0139-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 15, 2011, 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)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Lead Case Technician at the Agency’s Office of Disability Adjudication
and Review in Buffalo, New York. On March 1, 2011, Complainant filed an
EEO complaint alleging that the Agency subjected her to discrimination
in reprisal for prior protected EEO activity (filing an Office of Special
Counsel complaint) when:
1. On October 29, 2010, Complainant was rated a “Level 3” in
three elements of her Performance Assessment and Communications System
Performance Plan;
2. On March 31, 2010, Complainant received a “Commendable Act or
Service” Award instead of a “Recognition of Contribution” award;
3. In April 2006, Complainant was promoted to a Lead Case Technician,
GS-9, instead of a Paralegal Analyst, GS-9/11/12; and
4. Starting in April 2006, Complainant was subjected to a hostile work
environment when the Hearing Office Director ignored her and did not
respond when she said “Good morning.”
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that the sole
basis of Complainant’s complaint was that she was retaliated against
for filing a complaint with the Office of Special Counsel in May 2009.
The Agency concluded that Complainant’s justification for alleging
reprisal was not within the purview of the Commission’s laws and
regulations and there was no evidence in the record that Complainant had
any prior protected EEO activity. As a result, the Agency dismissed
the complaint for failure to state a claim. Additionally, the Agency
dismissed claims (2) – (4) pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely EEO counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that Hearing Office Director abused her
authority to dictate her evaluation. Further, Complainant contends
that her claims were timely brought to attention of the EEO counselor
and she continues to be subjected to a hostile work environment.
ANALYSIS AND FINDINGS
The Commission determines that the Agency correctly dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. Complainant alleges that the Hearing Office Director retaliated
against her for filing a complaint with the Office of Special Counsel.
Throughout her complaint, Complainant has contended that she was
retaliated and discriminated against based solely on her Office of
Special Counsel complaint. Complainant has not asserted nor is there is
any evidence, that she participated in any prior protected EEO activity
or opposed a discriminatory practice by the Agency prior to the instant
complaint. Thus, after a review of the record, the Commission finds
that Complainant failed to identify a basis within the purview of the
Commission’s regulations, and the Agency’s dismissal was proper.
29 C.F.R. § 1614.101. Accordingly, the Agency's final decision
dismissing Complainant's complaint is AFFIRMED.1
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
February 10, 2012
Date
1 The Commission notes that Complainant claims for the first time
on appeal that she was discriminatorily denied performance awards in
September 2011. Complainant is advised to initiate contact with an EEO
Counselor if she wishes to pursue additional allegations. The Commission
has held that new claims may not be raised for the first time on appeal.
See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449
(Apr. 22, 2004).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120113439
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120113439