Cristobal A,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 13, 2019

2019000977 (E.E.O.C. Mar. 13, 2019)

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.
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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.
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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
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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.
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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.
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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