Karen J. Wenrich, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01976265 (E.E.O.C. Jul. 13, 2000)

01976265

07-13-2000

Karen J. Wenrich, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Karen J. Wenrich v. Department of the Interior

01976265

July 13, 2000

Karen J. Wenrich, )

Complainant, )

)

v. ) Appeal No. 01976265

) Agency Nos. WGS-95-013, 94-032

Bruce Babbitt, ) Hearing Nos. 320-96-3138X, 8206X

Secretary, )

Department of the Interior, )

Agency. )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged discrimination

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

42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1>

ISSUES PRESENTED

The issues presented are whether complainant has established that the

agency discriminated against her based on sex (female) and reprisal (prior

EEO activity) when: (1) she was subjected to a hostile work environment

(Complaint No. WG-94-032); and (2) she was non-selected for the position

of Chief, Branch of Volcanic and Geothermal Processes, advertised under

Vacancy Announcement No. H-94-119 (Complaint No. 95-013).

BACKGROUND

Complainant, then a Geologist, GS-1350-15, with the agency's Geological

Survey, Branch of Sedimentary Processes, filed two complaints with the

agency (consolidated for processing) in which she alleged that she was

subjected to a hostile work environment, and that she was non-selected

for the position of Chief, Branch of Volcanic and Geothermal Processes.

The agency conducted an investigation, provided complainant with a copy of

the investigative report, and advised complainant of her right to request

either a hearing before an EEOC administrative judge (AJ) or an immediate

final agency decision (FAD). Complainant requested a hearing. A hearing

was held, and thereafter, the AJ issued a recommended decision<2> (RD)

finding no discrimination as to both issues, received by the agency on

April 17, 1997. On July 14, 1997, the agency adopted the finding in the

RD and issued a FAD finding no discrimination. It is from this decision

that complainant now appeals.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

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

Administrative Judge 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).

Upon review of the record, including the complaint file and associated

investigative report, the hearing transcript and exhibits, the AJ's

decision, and the parties' statements on appeal, the Commission finds

that the AJ's decision, in all material respects, correctly summarized

the relevant facts and referenced the appropriate regulations, policies,

and laws.<3> The Commission therefore discerns no basis to disturb the

AJ's decision. Accordingly, the Commission AFFIRMS the agency's final

decision.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 13, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

Date

1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at www.eeoc.gov.

2Under the Commission's regulations then in effect, the agency could

adopt, modify, or reject the findings of the AJ. Under the Commission's

revised regulations, however, the decision of an AJ is binding on both

parties, subject to the right of appeal to the Commission.

3The AJ implied that personnel employed in a branch other than the one

where complainant was employed could not have created a hostile work

environment for complainant. Apart from evidence of record indicating

that the branches were located along the same corridor of the same office

building, putting complainant in frequent, if casual, contact with these

other personnel, the fact that the personnel involved were not members

of complainant's branch does not mean they were legally incapable of

adversely affecting her work environment. Given the balance of the

AJ's findings, however, to the extent this implication was erroneous,

it amounts to harmless error.