0120064246
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. 01200642461
Agency No. 052543
Hearing No. 110a600125x
DECISION
On July 10, 2006, Mercedes M. Hawkins (complainant) filed an appeal from
the agency's June 16, 2006, final order concerning her equal employment
opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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. In mid-afternoon on March 7, 2005,
complainant felt unwell, and her supervisor (S1), after obtaining
a wheelchair for her use, escorted complainant to the Health Unit.
The Health Unit nurses called EMS paramedics, and they called a Basic
Life Support Unit to transport her to the hospital; the nurses informed
both complainant's husband and S1. Complainant claimed that the agency
discriminated against her based on race (African-American), national
origin (Hispanic), and disability (kidney problem, perceived depression)2
when she was harassed and subjected to a hostile work environment with
regard to her medical treatment while in the Health Unit on March 7,
2005.
Following an investigation, complainant requested a hearing.
The Administrative Judge (AJ) heard complainant's presentation of
her case, and, thereafter, granted the agency's Motion for summary
judgment, adopting it as her decision, and finding that the agency did
not discriminate against complainant. The AJ concluded that the gravamen
of complainant's case was the service she received by the Health Unit
nurses and the ambulance services, none of whom were employees of the
agency, and that complainant could not, as a matter of law, establish
discrimination or demonstrate pretext. The record shows that the Health
Unit is maintained on behalf of several federal agencies located at the
site through an interagency contract with RGB Group, a private entity,
which is responsible for all recruitment, hiring, training, paying,
and supervising of all Health Unit nurses. We agree with the AJ's
determination that the health unit personnel were not employees of the
agency. See Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006).
In her appeal statement submitted with her appeal notice3 and of
relevance to the instant matter, complainant repeated her contentions
that she was harassed by the health unit personnel and referred to the
facts of a second appeal pending before the Commission. That matter is
pending appeal before the Commission and concerns an event in July 2005.
Complainant does not address the AJ's conclusion that, because the health
unit personnel were not employees of the agency, as a matter of law she
could not establish discrimination nor could she demonstrate pretext.
After a careful review of the entire record, the Commissions determines
that the AJ's grant of summary judgment was appropriate, as no genuine
dispute of material fact existed, and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. For these reasons, therefore, we affirm the agency's
final order implementing the AJ's decision finding no discrimination.4
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 Due to a new data system, your case has been re-designated with the
above-referenced appeal number.
2 Complainant identified her kidney problem as a urinary tract infection
in February 2005, and her claim of perceived depression was based on her
supervisor's statement to the nurse that complainant had been prescribed
antidepressant medication in 1999.
3 Complainant's statement dated August 14, 2006, was postmarked beyond
the time period allowed for submission of additional statements and will
not be addressed. See 29 C.F.R. � 1614.403(d).
4 In reaching the above decision, we assumed, arguendo, that complainant
established that she was an individual with a disability, as she alleged.
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0120064246
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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