EEOC Appeal No. 0120170736
04-14-2017
Kayce L. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kayce L.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170736
Agency No. SF160205SSA
DECISION
Complainant timely appealed to this Commission from the Agency's November 23, 2016 dismissal of her complaint alleging 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., and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefit Authorizer (GS-9) at the Agency's Western Program Service Center ("WPSC") in Richmond, California.
On March 23, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to non-sexual harassment (hostile work environment) on the bases of sex (female, maternity leave) and age (over 40) when, beginning in 2009 and ongoing:
1. She was not selected for promotions and positions she applied for; and
2. Her supervisor, the Module Manager ("M1") sent her degrading emails.
Complainant has held the position of Benefit Authorizer at WPSC since 2003. Throughout her tenure she has received high performance evaluations and been recognized with a number of Exemplary Contribution Awards ("ECA") and Recognition of Contribution ("ROC") performance awards. Complainant states that she was among a select group of Benefit Authorizers to work on difficult disability cases. She also took on additional responsibilities including teaching Benefit Authorizer classes, and performing and training toll free support services. Prior to taking maternity leave from January through September 2013, she would mentor 3 to 4 trainees at a time, and she was the "resource person" in her Module ("Mod 06 ").
Over the years, Complainant unsuccessfully sought promotions by applying to "many" and "various" types of positions such as supervisor and Claims Authorizer "to name a few." Complainant identifies three other male Benefit Authorizers in Mod 06, all with less experience in the position (4 to 5 years as opposed to Complainant's 10 plus years) who were allegedly selected for the same promotions she applied for. Complainant specifically recounts how in August 2014 she applied and was interviewed for a Claims Authorizer position, but was not selected in favor of a less experienced male coworker ("C1"). Believing she was far more qualified for the position, Complainant asked her supervisor, M1, why she was not selected. M1 cited mentoring work C1 did while Complainant was on maternity leave a year earlier.
Complainant alleges that M1 created a hostile working environment both by repeatedly denying her promotions, and by sending "degrading" emails. The emails Complainant references and provides in the record were sent with "high" importance by M1 to the Mod 06 team and his supervisors in late May 2015, as well as a few additional emails sent in August and July 2015. M1's frustration with his team's productivity is evident in the tone of the emails. In one he states "it's not rocket science is it," and in another he singles out (but does not name) a team member for mistakes that prevented the team from reaching its goal. The rest of the emails are general updates of the team's completion rate and instructions on prioritizing workloads, with admonishments of the team as a whole for not completing work quickly enough. Around this time, an administrative investigation of Mod 06 was conducted. Complainant discussed both allegations in the instant complaint with the administrative investigator.
The Agency conducted a formal investigation of the merits of Complainant's allegations and provided her with the Report of Investigation ("ROI") and Notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not respond within 30 days, the Agency issued a Final Decision. It then dismissed Complainant's complaint on procedural grounds, citing untimely contact with an EEO Counselor as provided in 29 C.F.R. � 1614.107(a)(2) and � 1614.105(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. �1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �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. Under 29 C.F.R. �1614.105(a)(2), an agency or the Commission may extend the time limit if 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).
According to Complainant, the alleged harassment has been "ongoing" since 2009, yet she has not provided any allegations of discrimination or harassment that occurred within 45 days of contacting her EEO counselor. Although she describes it as one of "many," the only specific instance of nonselection of Complainant took place in August 2014, nearly two years before she initiated EEO contact. While Complainant provides the names of three additional comparators, she does not specify the positions they were allegedly awarded over her, nor does she indicate when this alleged discrimination occurred. Further, as the Agency pointed out, the most recent alleged degrading email from M1 was sent in August 2015, which is also more than 45 days prior to Complainant's initial EEO contact. Complainant does not provide any explanation for the delay to warrant an extension. Additionally, Complainant does not dispute, and the record supports that she was aware of the 45 day limitation period during the relevant time.
We find that "reasonable suspicion" existed for Claim 1 at least as early as August 2014, which is more than 45 days before Complainant contacted an EEO Counselor. Complainant provides in her Formal Complaint that in August 2014, she became "very uneasy" when M1 referenced her maternity leave while explaining why a less experienced male employee was selected for the Claims Authorizer position she interviewed for. Further indicating reasonable suspicion, Complainant contacted her Union Representative about the nonselection, although she decided not to take further action at the time. Complainant expressed her suspicion of discrimination again on September 16, 2015, when she was interviewed during an administrative investigation of Mod 06, and asked if the interviewer would "look at all of her HR records to determine if she was discriminated against in getting a promotion." The interviewer "reminded [Complainant] that she has the right to file an EEO complaint."
The administrative investigation interview also indicates that reasonable suspicion of discrimination also existed for Claim 2, as Complainant took the opportunity to reference the alleged degrading emails. In that instance, the investigator confirmed that Complainant knew where to go to file an EEO complaint and that she was aware of the Agency's anti-harassment policy. As the investigatory interview was completed over 45 days prior to Complainant's date of EEO contact, Claim 2 is also untimely.
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
April 14, 2017
__________________
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.
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