EEOC Appeal No. 0120171260
04-06-2017
Laurice S. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Laurice S.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120171260
Hearing No. 550-2016-00194X
Agency No. SEA-14-0397-SSA
DECISION
On February 24, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's letter dated January 30, 2017, informing her that it terminated processing her complaint and no appellate rights accrue. In her complaint, Complainant alleged 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 her complaint, Complainant worked as a Legal Assistant/Senior Case Technician, GS-08 at the Agency's Seattle Hearing Office, Office of Disability Adjudication and Review in Seattle, Washington.
On June 9, 2014, Complainant filed a formal complaint which the Agency defined as alleging it discriminated against her based on her race (African-American), sex (female), disability, age (59), and reprisal for prior protected EEO activity under Title VII, the ADEA and the Rehabilitation Act2 when:
1. On March 26, 2014, her first line supervisor (S1) - a Group Supervisor - ordered her to clerk for a Judge, which is outside her job classification;
2. She was subjected to a hostile work environment when S1:
a. On March 25, 2014, raised her voice, used a disrespectful tone, and brought matters up that Complainant's coworker should not have been privy to during a meeting;
b. On March 25 or 26, 2014, told her she would watch her closely and micromanage her workload, and between March 25, 2014 and April 28, 2014, micromanaged her work by calling her on the telephone, sending her emails, and showing up at her desk an excessive amount of times;
c. On March 26, 2014, accused her of disobeying a direct order and attempted to intimidate her by discussing with her an employee's request for a demotion in pay and grade;
d. Between April 7, 2014 and April 16, 2014, instructed her to abandon her regular duties and work schedule; and
e. On May 26, 2014, refused to answer her questions about assigning her work that was previously assigned to another clerk and instead made disparaging comments about her work product and performance, and skill set; and
3. On April 29, 2014, she received oral and written performance appraisals that contained false information.3
Following an investigation, the Agency sent Complainant the Report of Investigation (ROI). In its January 30, 2017, letter to Complainant, the Agency wrote that the ROI was delivered to Complainant on February 19, 2016, and accompanied by notice of rights explaining that:
...the processing of allegations of discrimination based on conduct not adversely affecting performance differs from customary statutory Equal Employment Opportunity (EEO) complaints processing because this basis does not fall within... EEOC's... purview. For this basis, the right to a hearing before an Administrative Judge of the EEOC does not accrue. The SSA's decision is final and may not be appealed to the EEOC.
The record does not contain the above notice and we are unclear if the Agency is indicating it included the last two sentences in the quoted passage above.
By letter to an EEOC Hearings Unit dated February 24, 2016, Complainant requested a hearing before an Equal Employment Opportunity Administrative Judge (AJ). The Agency's Office of Civil Rights and Equal Opportunity (EEO Office) received a copy of the letter in February 2016, and submitted the ROI to the relevant EEOC Hearings Unit in March 2016. Complainant's request for a hearing is still pending under Hearing No. 550-2016-00194X.
In its January 30, 2017 letter, the Agency's EEO office advised Complainant that the conduct alleged in her complaint did not adversely affect her performance, that its decision on this was final, and no appellate rights accrue. The Agency did not give Complainant appeal rights. In making this determination the Agency wrote that "[a]lthough we are applying internal agency rules and policies rather than EEO related laws and regulations, we will follow the same approach as we would for such laws. We therefore find that Complainant failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)."
On appeal, Complainant argues that she timely filed her request for a hearing following receipt of the ROI. She requests that the Agency's January 30, 2017, letter be rescinded and her hearing request be expeditiously processed.
ANALYSIS AND FINDINGS
The Agency initially processed Complainant's EEO complaint under 29 C.F.R. Part 1614 - in accordance with 29 C.F.R. � 1614.105 an EEO it provided Complainant EEO counseling, issued a report thereof, and gave Complainant her notice of right to file a complaint. After Complainant filed her complaint, the Agency acknowledged it and advised her of various EEO rights in accordance with 29 C.F.R. � 1614.106(e), and investigated it pursuant to 29 C.F.R. � 1614.108.
At this point, rather than continue to process the complaint under 29 C.F.R. Part 1614, the Agency switched to an internal Agency process. This was not appropriate.
Prior to a complainant requesting a hearing, an agency may dismiss a complaint for, among other things, failure to state a claim, with appeal rights to this office. 29 C.F.R. � 1614.107(a) & .110(b). Instead, the Agency sent Complainant the ROI accompanied with a notice that since her allegations of discrimination were based on conduct not adversely affecting performance, customary statutory EEO processing was not applicable. We disagree with this notice. Because Complainant filed an EEO complaint alleging discrimination on protected bases under 29 C.F.R. Part 1614, the Agency was required to process it under that Part, which it did until incorrectly switching the complaint to an internal Agency process.
Even though we have the discretion to construe the notice accompanying the ROI and/or the Agency's January 30, 2017, to be final Agency decision(s) dismissing Complainant's complaint, given the posture of this case we decline to do so. Complainant exercised her regulatory right to request a hearing (29 C.F.R. � 1614.108(h)) which has been pending since February 2016, and she still wants a hearing. We have the above discretionary authority not to treat the referenced Agency communications as FAD(s) because the communications were not issued under 29 C.F.R. Part 1614 and did not contain appeal rights.
The Agency, in accordance with the AJ's instructions, may raise its arguments that Complainant's complaint fails to state a claim, assuming the time to do so has not yet passed. 29 C.F.R. � 1614.109(b).
ORDER
The Agency is ordered to rescind in writing the notice of rights which accompanied the ROI it sent Complainant and its letter dated January 30, 2017. Thereafter, the Agency shall submit to the Hearings Unit that is processing Complainant's complaint the letter rescinding the above along with this decision and a brief letter explaining why it is making the submission. The Agency shall provide a copy of this submission to Complainant and Compliance Officer, as referenced below. The Agency shall complete the above actions within 30 calendar days from the date of this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 6, 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.
2 The Agency added the basis "conduct which does not adversely affect performance (Agency Basis)." Complainant did not allege such a basis.
3 We recounted how the Agency defined Complainant's complaint, and are not making any determination on the proper definition.
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