Carol R. Stinchcomb, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 27, 2001
05A10439 (E.E.O.C. Jun. 27, 2001)

05A10439

06-27-2001

Carol R. Stinchcomb, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Carol R. Stinchcomb v. Department of the Navy

05A10439

June 27, 2001

.

Carol R. Stinchcomb,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Request No. 05A10439

Appeal No. 01A10296

Agency No. 97-62795

Hearing No. 130-A0-8204X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Carol

R. Stinchcomb v. Department of the Navy, EEOC Appeal No. 01A10296

(February 14, 2001). EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In her underlying complaint, complainant alleged that the agency

discriminated against her on the bases of race (African-American),

color (black), and sex (female) when, from February to October 1997,

her request for training was denied, she was subjected to a hostile

work environment, her supervisor threatened her, she was interviewed

regarding her complaint but no action was taken against her supervisor,

her coworkers were directed to keep a logbook of her performance, she was

detailed for 120 days, her performance was rated by three supervisors,

and a second training request was denied.

In her request, complainant points out that there was a procedural

deficiency in the processing of her complaint, in that she did not

receive the required 15 days notice to respond in writing, pursuant to

EEOC Regulation 29 C.F.R. �1614.109(g), from the Administrative Judge

(AJ) before he issued a decision without a hearing. She further contends

that the EEOC appeal decision erroneously interpreted the material facts

in finding no discrimination, in that she suffered reprisal

when her immediate supervisor (S-1) created a hostile work environment

for her, after she informed him that his viewing pornography on the

Internet was offensive to her.

In its brief in opposition to complainant's request, the agency contends

that there was no procedural deficiency in that the AJ's Acknowledgment

and Order notified the parties that a decision might be issued without

a hearing. The Order specified in pertinent part:

A party shall notify the Administrative Judge within (30) calendar days

of the date of this order if he or she has objections to the issuance

of Findings and Conclusions Without a Hearing.

The agency also contended that it had articulated legitimate,

nondiscriminatory reasons for its actions which complainant did not show

were a pretext to mask a discriminatory animus. It further argued that

complainant's request did not proffer any evidence or supporting facts

which raised an inference of discrimination. The agency thus asserted

that complainant's request offered no compelling argument that the AJ's

decision involved a clearly erroneous interpretation of material fact

or law.

Even assuming, arguendo, that the AJ committed a procedural error in not

notifying complainant that she had 15 days to respond in writing before

the AJ issued his decision without a hearing, the Commission agrees with

the agency that complainant has proffered no evidence or compelling

argument that any material facts were in dispute, either on appeal or

in her instant request. Hence, we conclude that the AJ was justified

in making a decision without a hearing, and issuing summary judgment for

the agency. In this regard, we find that the AJ legitimately determined,

given the facts of the case, that complainant did not persuasively

show that she was subject to harassment which was pervasive or severe

enough to create a hostile work environment and which stemmed from a

race, color, gender, or sex-based discriminatory animus. See Jackson

v. United States Postal Service, EEOC Appeal No. 01972555 (April 15,

1999); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC

Compliance Manual, Volume 2, EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 6.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission therefore finds

that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),

and it is the decision of the Commission to deny the request.

The decision in EEOC Appeal No. 01A10296 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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 27, 2001

Date