0120062041
08-01-2007
James C. Nase, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
James C. Nase,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200620411
Hearing No. 150-2005-00536X
Agency No. M03-0032
DECISION
On February 3, 2006, complainant filed an appeal with the Commission
concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.2 For the following reasons, the Commission
AFFIRMS the agency's final action.
At the time of events giving rise to this complaint, complainant worked as
a Deputy U.S. Marshal assigned to the District of the Virgin Islands.
On April 19, 2003, complainant filed a formal EEO complaint, wherein
he claimed that he was discriminated against on the bases of race
(Caucasian), sex (male), age, and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act of 1967 when:
1. On February 19, 2003, complainant received a memorandum wherein a
coworker accused him of having an accident with her government-owned
vehicle. It was also alleged that complainant failed to report the
damage or accident to management officials.
2. On February 25, 2003, complainant received a memorandum whereby a
coworker accused him of inappropriate and unethical behavior when he
allegedly tampered with the warrant investigation files, her personal
work file cabinet, the telephone and the computer.
3. Management officials failed to properly investigate these allegations.
4. On April 15, 2003, complainant was notified that he was the subject
of in Internal Affairs investigation for violation of the Code of Conduct
and Professional Responsibility.
5. On or about April 15, 2003, complainant learned that some individuals
who served as Acting Supervisory Deputy U. S. Marshal were compensated.
However, complainant was not compensated when he served from April 17,
2002, through August 12, 2002.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On October 17, 2005, the agency filed a Motion
for Decision Without a Hearing. In its Motion, the agency stated with
regard to claims 1-4 that complainant failed to make an allegation that
he suffered an adverse employment action. The agency further argued
that complainant failed to state a prima facie case of hostile work
environment because he did not demonstrate that the alleged conduct was
so severe that a reasonable person would find the environment hostile
or abusive. The agency contended with regard to claim 5 that complainant
failed to demonstrate that its reasons for not giving him additional
compensation were pretext. The AJ issued a decision without a hearing
on December 20, 2005. The AJ found that complainant failed to establish
by a preponderance of the evidence that he was discriminated against by
the agency.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
With regard to the claims concerning complainant being accused by a
coworker of being in an auto accident with a government car and not
reporting the damage, tampering with office equipment, and the agency not
properly investigating these allegations, we find that complainant did
not suffer harm to a term, condition, or privilege of his employment.
Furthermore, we find that these claims are insufficient to amount a
hostile work environment, even if true. Finally, we find no evidence
showing that these incidents were motivated by discrimination.
As for complainant not receiving a pay increase during the period he
served as a Deputy in Charge, the agency stated that between April
17, 2002 and August 26, 2002, all the deputies assigned to St. Croix
took turns as a Deputy in Charge and none were compensated during this
period.3 The agency acknowledged that a Black male received a temporary
sixty day promotion to the Deputy in Charge position with compensation
between February and March of 2003. The agency stated that sixty day
temporary promotions were awarded after the supervisor transferred
from the District. The agency noted that complainant was offered a
temporary promotion, but that he declined the offer. We find that the
agency articulated legitimate, nondiscriminatory reasons for not paying
complainant at a higher rate during the period he served as a Deputy
in Charge. Complainant has not shown that his failure to receive a pay
increase was somehow linked to discrimination.
Accordingly, the agency's final action is AFFIRMED.
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
August 1, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The agency did not issue its final action until April 12, 2006.
Although complainant filed the instant appeal first, we shall consider
the appeal timely filed.
3 The record indicates that complainant served as the Deputy in Charge
from April 17, 2002 to June 27, 2002, and from July 21, 2002 to July 27,
2002.
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01200620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062041