01a43552
12-08-2005
Nathan Whatley, Complainant, v. Mike Johanns , Secretary, Department of Agriculture, Agency.
Nathan Whatley v. Department of Agriculture
01A43552
12-08-05
.
Nathan Whatley,
Complainant,
v.
Mike Johanns ,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A43552
Agency Nos. 010036; 010194; 010536; 010681
Hearing Nos. 250-A2-8173x; 250-A2-8174x;
250-A2-8175x; 250-A2-8221x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant claimed discrimination based on disability and in reprisal for
prior EEO activity when he was harassed, not accommodated, and with regard
to terms and conditions of employment. After a review of the record
in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission
to affirm the agency's final decision, because the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.<1> <2>
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
___12-08-05_______________
Date
1For purposes of analysis, we assume, arguendo, without finding,
that complainant established that complainant is an individual with a
disability under the Commission's regulations. 29 C.F.R. � 1630.2(g)(1).
2We note that the AJ's recitation of the legal standard of claims of
harassment/hostile work environment referred to 'quid pro quo' harassment;
however, the Commission's guidance employs somewhat different reasoning.
See Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (October 17, 2002).
Nevertheless, the AJ properly applied the law to the facts of this matter.