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.