James Washington, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 31, 2000
05a01132 (E.E.O.C. Oct. 31, 2000)

05a01132

10-31-2000

James Washington, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


James Washington v. Department of the Army

05A01132

October 31, 2000

.

James Washington,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05A01132

Appeal No. 01993258

Agency Nos. 9706H0070; 9802I0140

Hearing Nos. 100-98-7979X; 100-98-8057X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission to reconsider the decision in James Washington v. Department of

the Army, EEOC Appeal No. 01993258 (March 2, 2000).<1> EEOC Regulations

provide that the Commission may, in its discretion, reconsider any

previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In his formal complaints, complainant alleged that he was subject

to a hostile work environment based on sex (male) and that he was

issued a leave restriction based on retaliation for filing the hostile

work environment complaint. The appellate decision affirmed an EEOC

Administrative Judge's (AJ) issuance of a decision without a hearing,

finding no discrimination. In his request for reconsideration,

complainant contends that summary judgment was improper and that the AJ

erroneously interpreted the law governing a claim of harassment.

Upon review, we find that complainant has failed to offer any evidence

or argument that was not previously considered by the Commission.

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) he was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on his membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The AJ determined that

viewing the evidence in the light most favorable to the complainant,

the conduct complained of was insufficiently severe or pervasive to rise

to the level that an objective person would conclude created a hostile

working environment. Furthermore, the AJ found that complainant could not

establish a prima facie case of reprisal since complainant presented no

evidence to refute the named responsible management officials' contention

that they were unaware of his prior protected activity. The AJ concluded

that complainant failed to set forth specific facts demonstrating a

genuine issue of material fact or to proffer evidence sufficient for

a reasonable trier of fact to find in his favor After a review of the

complainant's request for reconsideration, the previous decision, and the

entire record, the Commission finds that the AJ's issuance of a decision

without a hearing was appropriate in the instant case and that the request

to reconsider fails to meet the criteria of 29 C.F.R. � 1614.405(b).

Accordingly, it is the decision of the Commission to deny the request.

The decision in EEOC Appeal No. 01993258 remains the Commission's final

decision. There is no further right of administrative appeal on the

decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

October 31, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.