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

Equal Employment Opportunity CommissionFeb 28, 2007
0120071591 (E.E.O.C. Feb. 28, 2007)

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