01A20939_r
06-25-2002
Frances P. Hicks, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Frances P. Hicks v. Department of the Treasury
01A20939
June 25, 2002
.
Frances P. Hicks,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A20939
Agency No. 98-1079
Hearing No. 100-99-7192X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of race
when she was harassed as follows:
(1) On June 9, 1997, management rescinded complainant's Compressed
Work Schedule (CWS) privilege;
(2) On July 31, 1997, complainant received a performance rating for the
period ending June 30, 1997, which was lower than she
thought she deserved; and
(3) On September 16, 1997, complainant was informed that she would be
placed on a performance improvement plan (PIP).
The record reveals that complainant, a Purchasing Agent, GS-1105-8,
in the agency's Procurement Division, Office of Administration, filed
a formal EEO complaint with the agency on December 5, 1997, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Determining that there were no material
facts in dispute, however, the AJ issued a decision without a hearing,
finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
harassment discrimination. Specifically, the AJ found that complainant
failed to demonstrate that the alleged conduct was sufficiently severe
or pervasive to have altered the conditions of complainant's work
environment. In addition, the AJ determined that complainant failed
to state a claim in regard to claim 3, finding that the matter raised
therein did not affect a term, condition, or privilege of complainant's
employment, and that is was a proposed action as well.
The AJ concluded that even assuming, arguendo, that complainant had
established a prima facie case of race discrimination regarding claims 1
and 2, the agency articulated legitimate, nondiscriminatory reasons for
these actions. The AJ determined that complainant's CWS participation
privilege was rescinded because she was clearly not performing at an
acceptable level, and that she received an �Unacceptable� performance
appraisal because she demonstrated unacceptable performance in five
rating elements. The AJ noted that her performance deficiencies were
well documented in the investigative record and that she provided no
evidence to suggest that her unacceptable rating was based on her race
rather than on an evaluation of her performance.
The agency's final action then implemented the AJ's decision. Neither
complainant nor the agency makes any contentions on appeal.
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 a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
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 note that complainant
failed to present evidence that any of the agency's actions were
motivated by a discriminatory animus toward complainant's race.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including arguments and evidence not
specifically addressed in this decision, we affirm the agency's final
action.
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
June 25, 2002
Date