0120071445
05-29-2009
Darriel K. Caston, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Darriel K. Caston,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120071445
Hearing No. 550-06-00047X
Agency No. WBR-04-056
DECISION
Complainant filed an appeal from the agency's final action dated
December 13, 2006, finding no discrimination with regard to his
complaint. In his complaint, dated September 5, 2004, complainant, a
former Electronic Engineer, with the agency's Bureau of Reclamation in
Sacramento, California, alleged discrimination based on religion (not
specified) and prior EEO activity when from June 2003, to March 2004,
he was subjected to a hostile work environment.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On November
8, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's 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.
Despite complainant's claim, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material
fact exists. In this case, the AJ determined that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for the
alleged incidents. Complainant claimed that between June 2003, and
March 2004: his supervisor used unprofessional language from time to
time; he overheard his supervisor making derogatory remarks toward a
female coworker; his supervisor was unpleasant to all employees; his
supervisor hit employees on the back of the head; and his supervisor
made religious remarks about God and the devil during the course of a
February 2003 meeting related to complainant's performance shortcomings.
The supervisor specifically denied making the alleged remarks or
hitting the back of her employees' head or making religious remarks
to complainant. Also, the supervisor stated that during the relevant
time period, complainant never complained about the alleged incidents
to her. The supervisor's superiors indicated that they never received
any complaints from complainant nor anyone else about this purported
harassment. The agency noted that in March 2003, the supervisor
questioned complainant about his government credit use which ultimately
resulted in his removal from the agency on October 1, 2003.1 Complainant
did not raise the removal issue in this case.
The AJ stated, and we agree, that complainant failed to prevail on his
harassment claim because, even if the incidents of alleged harassment
occurred as complainant alleged, complainant failed to present
evidence that reasonably gave rise to an interference of religious
or reprisal-based harassment. Upon review, despite complainant's
dissatisfaction with his work relationship with his supervisor, we find
that he failed to show that the alleged harassment was sufficiently
severe or pervasive to affect a term and condition of his employment
or that any agency actions were motivated by discrimination as he
claimed. We agree with the AJ that the alleged references to religion
by complainant's supervisor in one meeting are insufficient to show
harassment based on religion. Accordingly, the agency's final action
finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/29/09
__________________
Date
1 Complainant appealed his October 1, 2003 removal to the Merit Systems
Protection Board (MSPB) and the parties subsequently entered into a
settlement agreement on April 8, 2004, wherein complainant agreed to
resign effective January 1, 2005.
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0120071445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013