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.