Cristobal A,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 13, 20192019000977 (E.E.O.C. Mar. 13, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal A,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2019000977 Agency No. 2018-27909-FAA-05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 1, 2018, dismissing his complaint of unlawful 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician, FV-0856-11 at the Agency’s facility in Oklahoma City, Oklahoma. On September 4, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of his claim of harassment, Complainant asserted the following events occurred: 1. On January 16, 2016, Complainant was talking to the cafeteria worker at breakfast at 9:45 when Colleague 1 walked by and the cafeteria worker and Complainant said, “Hi.” Colleague 1 came back and said, “is this guy bothering you?” Complainant said, “I have not seen him in two weeks.” 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000977 2 2. At which point, Colleague 1 indicated that he was just kidding. 3. On July 13, 2017, Complainant had a meeting at 10:30 with Colleague 2 and an Administrator from Washington, D.C. Complainant was told that she was here to see a coworker. 4. On July 20, 2017, Complainant came to work and found Colleague 3 in his work area. When he entered the other side, he saw Colleague 1 talking with another coworker. He noted that Colleague 2 walked around his work area to say good morning. Complainant indicated that he had not done this in 6 months. Others didn’t say hello to him and just walked by. Complainant had not been able to sleep because there was a rumor that he was going to be fired. He spoke with his supervisor at the time (Colleague 2) who told him that everything was okay. 5. On November 13, 2017, Colleague 4 asked Complainant to train the new guy. Complainant suggested Colleague 5 who had 30 years of experience. 6. On November 14, 2017, Colleague 4 was off work and Colleague 6 got his GS- 12. Colleague 6 asked Complainant to train the new guy. Complainant stated that Colleague 5 was going to train the new guy. 7. On January 8, 2018, Colleague 3 walked by Complainant’s work bench and looked at him but did not say anything. 8. On February 8, 2018, Colleague 7 walked by Complainant’s work bench very loudly and looked at Complainant without saying anything. 9. On February 9, 2018, Colleague 8 walked by Complainant’s work bench very loudly and looked at Complainant without saying anything. 10. On March 26, 2018, Colleague 3 walked by Complainant’s work bench very loudly without saying anything. 11. On March 28, 2018, Colleague 8 walked by Complainant’s bench very loudly without saying anything to Complainant. 12. On April 6, 2018, on two occasions, Complainant was followed out by a white truck driven by Colleague 9. 13. On April 17, 2018, Colleague 2 walked by his desk and did not say anything to Complainant. 14. On April 18, 2018, Colleague 2 and Colleague 8 walked by Complainant’s desk with street shoes which were very distracting and intimidating. 2019000977 3 15. They looked at Complainant and did not say a word. He noted that a friend of his had an EEO hearing that day. 16. On May 4, 2018, Colleague 6 walked into Complainant’s work area. He noted that there was an empty desk next to Complainant which the colleague opened and shut drawers loudly as if he was trying to harass Complainant. Complainant looked up and made eye contact. Colleague 6 turned and left without saying a word. 17. On May 7, 2018, Colleague 6 brought Complainant a box of boards. Complainant asserted that he had never done this before and he believed it was to harass him. Complainant asserted that the box of boards was left for him to pick up. 18. On May 10, 2018, Complainant indicated that there was a meeting in a room which was full and he had to wait outside the room in the hallway. Complainant believed that Colleague 2 gave him the cold shoulder. 19. On May 21, 2018, Complainant went to work and, on his way back, he saw Colleague 2 outside of the building walking and talking on the phone. When Complainant got close to the building, Colleague 2 turned his head and stared walking to the front door where he stopped and continued to talk while turning his head from Complainant. Complainant noticed that Colleague 2 did not walk into the building for 20 minutes with Colleague 10. He indicated that the two were talking about Colleague 7. 20. On May 22, 2018, Colleague 7 walked past Complainant’s bench area twice. Complainant asserted that he looked at him twice and said nothing. The second time, Complainant asserted that Colleague 7 was very loud and stated “good night” in a high pitched tone. 21. On July 3, 2018, Complainant was in the hallway when Colleague 2 and Colleague 7 walked by Complainant and did not speak to him. Later, Complainant asserted Colleague 7 walked by his work bench in his cowboy boots on very loudly. Complainant believed this was to intimidate him. 22. On July 27, 2018, Complainant was at his work bench with his headset on when Colleague 2 walked up to the work bench and kicked Complainant’s chair. Complainant removed the headset and asked Colleague 2 if he was feeling alright. Colleague 2 said he was “okay” and asked if his computer was up and running because there were several computers in the division that were not running. 23. On August 13, 2018, Complainant was eating lunch with Colleague 11 when 2019000977 4 Colleague 7 walked over to their table with his cowboy boots. He kicked Colleague 11’s chair and looked at Complainant. He walked off and did not speak to either of them. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency found that the events alleged were not sufficient enough to state a claim of harassment. This appeal followed. Complainant asserted that he had alleged viable claim of harassment. the Agency asked that the Commission affirm its dismissal. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant’s allegations are insufficient to state a claim of a hostile work environment based on race. Complainant also asserted that he was subjected to unlawful retaliation for his prior protected activity. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Upon review, we find that Complainant has not asserted that the alleged events would have deterred him or others from participating in the EEO process. As such, we find that the Agency’s dismissal was appropriate. 2019000977 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 2019000977 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 13, 2019 Date Copy with citationCopy as parenthetical citation