Darriel K. Caston, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMay 29, 2009
0120071445 (E.E.O.C. May. 29, 2009)

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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2

0120071445

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013