0120101236
10-12-2010
Xavier D. Gutierrez, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Xavier D. Gutierrez,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120101236
Agency No. 2009-22915-FAA-04
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 23, 2009, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
During the relevant time, Complainant was employed as an Air Traffic Controller, 2152-LH at Chicago O'Hare International Airport Chicago, Illinois.
On December 13, 2009, Complainant filed the instant complaint. Therein, Complainant claimed that he was subjected to discrimination on the bases of race (Hispanic/Latino), color (brown), and age (48), when:
1. On August 24, 2009, Complainant's co-worker stated to a manager that he was intimidated by Complainant's alleged threatening looks;
2. On August 27, 2009, a co-worker stood near the refrigerator in the break room and looked at Complainant for about a minute, and then walked away without saying anything;
3. On September 1, 2009, when Complainant returned to the parking garage after his shift, Complainant saw, what he perceived to be, dried sputum on his motorcycle seat;
4. On October 29, 2009, coworker tried to remove a waste basket by banging it against the cabinet and Complainant's leg and then said, "excuse me" and proceeded to transfer the contents of the waste basket into another receptacle;
5. On November 6, 2009, a co-worker accused Complainant of taking his headset; and
6. On November 19, 2009, after returning from break, Complainant heard coworker tell a group of fellow controllers that someone should have run "Dan" over with their truck. Complainant believes that co-worker was referring to him.
On December 23, 2009, the Agency issued a final decision, dismissing the formal complaint for failure to state a claim. The Agency found that the incidents described in Complainant's formal complaint do not rise to the level of harassment or creating a hostile work environment, because the incidents were not sufficiently severe or pervasive so as to alter the conditions of Complainant's employment.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the harassment has continued, as he has been subjected to highly offensive conduct, racial slurs, and verbal and physical assault. Complainant states, for example, that in January 2010, a co-worker approached him in a threatening manner, indicating that he know all about Complainant, and that Complainant "played his wet-back race card to get checked out;" and that he threatened Complainant with physical harm.
ANALYSIS AND FINDINGS
Complainant's formal complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim. A fair reading of the record indicates that Complainant is asserting that he has been subjected to an ongoing pattern of discriminatory harassment, of which the incidents described in his complaint were only examples. On appeal, he has provided further examples of this alleged pattern of harassment. The alleged incidents identified in the formal complaint and on appeal, when considered together, are sufficiently severe and pervasive to state a claim of harassment and a hostile work environment. See Cobb v. Department of the Treasury, EEOC Request No.05970077 March 13, 1997). With his allegations of an ongoing pattern of discriminatory harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993) (the Commission found that deciding whether the alleged harassment would adversely affect a reasonable person goes towards the merits of Complainant's complaint and not the procedural issue of whether Complainant's complaint states a claim).
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment claim) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 12, 2010
__________________
Date
2
0120101236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101236