0120071591
02-28-2007
Mercedes M. Hawkins, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Mercedes M. Hawkins,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120071591
Hearing No. 410200600125X
Agency No. 052543
DECISION
On November 25, 2006, Mercedes M. Hawkins (complainant) filed an appeal
from the agency's November 2, 2006, final order concerning her equal
employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
At the time of the events herein, complainant worked for the agency at
its Atlanta, Georgia, facility. She claimed that the agency harassed
her and subjected her to a hostile work environment when, (a) on June 10,
2005, based on sex, her supervisor (S1)1 bumped into her and grabbed her
buttocks; and (b) in early July 2005, in reprisal for prior EEO activity,
she was reassigned to another unit under a female supervisor.
Following an investigation, complainant requested a hearing, and the
Administrative Judge (AJ) conducted a hearing over two days, issuing
her decision on October 18, 2006. The AJ found that, as to (a), if
S1 touched complainant's buttocks, it was no more than an isolated
event, not sufficiently severe or pervasive to create a hostile work
environment and that, upon notice by complainant on June 16, 2005,
the agency took immediate and appropriate action; and, as to (b),
complainant's transfer was not in retaliation but "to help complainant"
by moving her to a unit not headed by a male, noting that she received a
higher performance rating in her new unit, that complainant sought and
agreed to the circumstances of her transfer, and that any delay in the
transfer was not retaliation, but merely normal bureaucratic "glitches"
combined with the July 4 holiday-vacation period.
In her appeal statement, of relevance to the instant matter, complainant
contended that (i) the AJ's citations to two decisions2 did not apply
to her case, since they arose in the private sector; (ii) the agency
delayed her transfer to another unit; (iii) S1 denied her overtime after
she complained to managers; (iv) she was harassed in her new unit; and
(v) she did not receive a transcript of the first day of the hearing.3
With regard to the contentions that complainant raised on appeal, (i)
the two cases cited by the AJ were appropriately referenced as they
established legal principles for addressing claims of harassment under
Title VII; (ii) the AJ found that the agency did not delay her transfer,
and complainant was informed; (iii) the record shows that complainant
agreed to not seek overtime until her work performance improved; (iv)
new claims of discrimination must be raised with an EEO counselor;4 and
(v) because she was represented at the hearing, it is likely that the
transcript was sent to her attorney.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
decision of the AJ accurately stated the facts and correctly applied
the pertinent principles of law. In an administrative hearing, where
the motivation and credibility of witnesses are critical, the credibility
findings of the hearing officer are entitled to great weight, unless there
is substantial evidence in the record to support a contrary assessment.
See Universal Camera Corp. v. National Labor Relations Board, supra;
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996); Willis v. Department of the Treasury, EEOC Request
No. 05900589 (July 26, 1990). We find that the credibility findings
and the decision of the AJ were appropriate and correct.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
____2/28/07______________
Date
1 We note that the record indicates that S1 is legally blind.
2 Complainant referred to Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
see Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999,
as revised, October 17, 2002).
3 We also find no support in the record for complainant's claims that the
AJ and the agency conspired to take action against her or hid information
from her.
4 Complainant also raises some new issues; however, it is not appropriate
for complainant to raise new claims for the first time on appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004).
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0120071591
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071591