0120082788
11-13-2008
Carlos Zimmerle, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Carlos Zimmerle,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082788
Agency No. 8Z0J07011
DECISION
Complainant filed a timely appeal from the agency's final decision,
dated May 14, 2008, pertaining to 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
During the relevant time, complainant worked as a WS-4206-08 Plumbing
Supervisor for the Wilford Hall Operations Flight at Lackland Air
Force Base, Texas. Believing that he was subjected to discriminatory
harassment, complainant contacted the EEO office. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint based on national origin and
reprisal. The agency framed the claims as follows:
(1) on January 25, 2007, complainant's first line supervisor (hereinafter
"supervisor") presented complainant with a 971 entry alleging that he
was not present at a job site on January 24, 2007 (looking for valves
in Bldg 4430);
(2) on January 19, 2007, complainant asked his supervisor for leave
to take his daughter to the Clinic because she had gotten hurt.
The supervisor's response was "why can't your family get hurt on
Wednesdays"; and
(3) on January 25, 2007, two upper level managers met with complainant
to discuss an incident involving complainant's supervisor, wherein the
supervisor had told them that complainant had refused to go on a job;
complainant asked them for union representation prior to speaking with
them and they refused.1
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. When complainant did
not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
The agency reasoned that complainant failed to establish a claim of
discriminatory harassment. According to the agency, the incidents
presented in claims (2) and (3) did not occur. Further, acknowledging
that claim (1) took place, the agency noted that "it was verbal
and not repeated." The agency concluded that, even if the events
were assumed to have occurred precisely as claimed by complainant,
the events do not rise to the level of a hostile work environment or
otherwise unreasonably interfere with complainant's job performance.
The actions taken by management were reasonable and taken with regard to
the administration of leave and the maintenance of workplace discipline.
In particular, the agency noted that the 971 entry was a response to
complainant's inappropriate behavior (i.e. hitting the table and being
disrespectful) and failure to comply with the agency's procedures.
The agency concluded that the claims did not result in an objectively
hostile or abusive work environment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Based on a through review of the instant record, the Commission agrees
with the agency that the alleged events did not unreasonably interfere
with the work environment nor create a hostile or offensive one.
With respect to claim (1), complainant's supervisor attested that while
working with complainant and another employee, he was unable to locate
complainant for several hours. Because complainant could not account for
his absence2, the supervisor made an entry in the 971 file. According to
the supervisor, when he presented complainant with the entry, he became
argumentative, punched the table with his fist, and slammed the door.
In his affidavit, complainant does not explain his absence, except to
say he could not locate his supervisor. As to the disrespectful conduct,
complainant contends that the supervisor allows another employee to yell
at him and that he merely put his fist down on the table "but I didn't
do it so hard that the table could break." This event appears to be
one regarding the reasonable discipline of an employee, rather than a
hostile work environment.
Regarding claim (2), the record is unclear whether the remark was made
by the supervisor. Nonetheless, even complainant acknowledges that he
was permitted to leave work to assist his daughter. While insensitive,
we do not find that the alleged comment was sufficiently severe so as
to state a claim of harassment.
Similarly, even assuming that the events in claim (3) occurred as
alleged by complainant, we do not find that he has established a claim
of unlawful harassment. Complainant has failed to show any nexus between
the incidents and his national origin or prior EEO activity.
CONCLUSION
Accordingly, the agency's decision finding no discrimination was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
November 13, 2008
Date
1 The record reflects that an additional claim was raised on February
13, 2007. On that date, complainant contends, his supervisor gave him a
"verbal proposal to reprimand" for abandoning the work site on January 24,
2007 and for being disrespectful the next day, when complainant allegedly
pounded his fist on the supervisor's desk, walked out, and slammed the
door. In a letter dated March 7, 2007, the agency dismissed this claim
on the grounds that it concerned a proposal to take a personnel action.
Complainant does not challenge the dismissal on appeal. Consequently,
the Commission will not address the matter herein.
2 Complainant purportedly stated he was speaking with the Heating Shop
Foreman, but the foreman indicated that he only spoke with complainant
for about ten minutes.
??
??
??
??
2
0120082788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082788