01a53049
07-19-2005
Wilfred J. Omoloh, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Wilfred J. Omoloh v. Department of Health and Human Services
01A53049
July 19, 2005
.
Wilfred J. Omoloh,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A53049
Agency No. FDA-ORAN-NW-014-04-F
Hearing No. 380-2004-001144X
DECISION
Complainant appeals to the Commission from the agency's February 7, 2005
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (African-American), sex (male), and national origin
(Kenya) when complainant was terminated from employment during his
probationary period on September 12, 2003. Complainant also alleged
that he was harassed by various comments.
On January 6, 2005, an EEOC Administrative Judge (AJ), without a
hearing, issued a decision finding that there was no genuine issue of
material fact in dispute, and concluded that complainant had not been
discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its actions,
which complainant failed to rebut. The AJ also found that there was
insufficient evidence to support a claim of harassment on any of the
bases alleged in this matter. The agency, on February 7, 2005, issued a
decision fully implementing the AJ's decision. Complainant now appeals
from that decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
We find that the agency has shown a legitimate nondiscriminatory
reason for its actions. With respect to complainant's termination,
the Supervisory CSO, FDA, Tacoma Post, Tacoma, Washington (hereinafter
Supervisor) stated that complainant was terminated during his probationary
period due to complainant's unacceptable conduct in dating an employee of
a firm where he was assigned to conduct official business. The Supervisor
reported that he also considered complainant's inappropriate conduct
towards coworkers for which he was previously counseled.
As to the claim of harassment, complainant alleges that he was harassed by
the Supervisory CSO, FDA, Seattle District Office, Bothell, Washington
(hereinafter Supervisor 1), when she made derogatory comments about
�making love� and �going to the bathroom� during the final day of
complainant's training. The AJ found that the incidents alleged by
complainant did not alone, or in combination, establish that complainant
was subjected to a hostile work environment from which an inference
of discrimination could be drawn. Specifically, the AJ found that
complainant had not established that the complained of conduct was
discriminatorily motivated or that the agency knew of the conduct and
failed to remedy it. The AJ found that the complained of conduct did not
meet the �severe and pervasive� requirement of a hostile work environment
claim because the comments, even if uttered, were relatively few.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reason for its actions.
Complainant failed to show, by a preponderance of the evidence, that
he was discriminated on the bases of race, sex, or national origin.
Furthermore, complainant failed to show that he was subjected to a
hostile work environment because he failed to show that the alleged
harassing incidents, when considered together, constitute a hostile
work environment.
The agency's decision finding no discrimination 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
July 19, 2005
__________________
Date