Essie B. Hopkins, Complainant,v.Arthur Levitt, Jr. Chairman, Securities and Exchange Commission, Agency.

Equal Employment Opportunity CommissionDec 19, 2000
01980928 (E.E.O.C. Dec. 19, 2000)

01980928

12-19-2000

Essie B. Hopkins, Complainant, v. Arthur Levitt, Jr. Chairman, Securities and Exchange Commission, Agency.


Essie B. Hopkins v. Securities and Exchange Commission

01980928

December 19, 2000

.

Essie B. Hopkins,

Complainant,

v.

Arthur Levitt, Jr.

Chairman,

Securities and Exchange Commission,

Agency.

Appeal No. 01980928

Agency Nos. 46-95; 60-95

Hearing Nos. 100-96-7584X; 100-96-7585X

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision (�FAD�) concerning her complaint of employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. and the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791, et seq.<1> In her complaint, complainant alleged that

she was discriminated against on the bases of sex (female), disability

(reading difficulty) and in retaliation for prior EEO activity, when her

supervisor: (1) accused her of stealing from a restaurant; (2) exposed

her to sexual harassment in the workplace; (3) forced her to report to

the agency's Employee Assistance Program (�EAP�); (4) denied her career

development opportunities, an honest performance evaluation, a promotion,

and a performance award; (5) subjected her to rigid time and attendance

rules and charged her with Absent Without Leave; and (6) harassed her

because of her disability. The appeal is accepted pursuant to 29 C.F.R. �

1614.405. For the following reasons, the agency's decision is affirmed.

BACKGROUND

The record reveals that complainant, a Bindery Machine Operator in the

agency's Printing Plant Division of the Office of Administration and

Management Support, filed formal EEO complaints with the agency on July

3, 1995 and October 13, 1995, alleging that the agency had discriminated

against her as referenced above. At the conclusion of the investigation,

complainant received copies of the investigative reports and requested a

hearing before an EEOC Administrative Judge (AJ). After receiving the

hearing request, the AJ concluded that the hearing should be limited

to only those issues genuinely in dispute. Following the hearing,

the AJ issued a decision combining all of the issues and finding no

discrimination.

The AJ concluded that regarding the alleged accusation of theft from a

local restaurant, complainant failed to state a claim because she did

not show that she suffered a harm sufficient to render her aggrieved.

With respect to the sexual and disability harassment allegations, the

AJ concluded that complainant failed to prove that she was actually

subjected to the alleged unwelcome behavior. As to the allegation that

she was forced to report to the EAP office, the AJ concluded that even

assuming complainant established a prima facie case of discrimination

on any basis, she failed to demonstrate that the agency's stated reason

was pretextual. Specifically, the AJ found that complainant did not show

pretext in the agency's stated reason that it referred complainant to

EAP because of attendance and personal problems. Regarding the issues

of career development opportunities, performance evaluation, promotion,

performance award and time and attendance monitoring, the AJ concluded

that while complainant established prima facie cases of discrimination on

one or more of her alleged bases, she failed to show that the agency's

stated reasons were pretext for discrimination. In concluding, the

AJ found that complainant did not prove by the preponderance of the

evidence that she was discriminated against on the bases of her sex,

disability or in retaliation for her prior EEO activity.

On appeal, complainant restates arguments previously made at the hearing.

In response, the agency restates the position it took in its FAD, and

requests that we affirm its final decision.

ANALYSIS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). In addition, the Commission will apply a

de novo standard of review when it reviews an AJ's decision to issue

a decision without a hearing pursuant to 29 C.F.R. � 1614.109(g).

See EEOC MD-110, at 9-16.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We also find that the

AJ's issuance of a partial decision without a hearing was appropriate

in this case. Even assuming that complainant established a prima facie

case of discrimination regarding each issue and on every bases alleged

in this case, we find that she failed to present sufficient credible

evidence that any of the agency's actions were in retaliation for

complainant's prior EEO activity or were motivated by discriminatory

animus toward complainant's sex or disability. Likewise, we find that

complainant failed to demonstrate that she was subjected to the alleged

unwelcome conduct which was the basis of her sexual and disability

harassment allegations. As a result, we discern no basis to disturb

the AJ's decision. Therefore, after a careful review of the record,

including complainant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we AFFIRM the agency's final decision which adopted the AJ's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 19, 2000

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.