Mercedes M. Hawkins, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120064246 (E.E.O.C. Feb. 28, 2007)

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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0120064246