0120060816
11-30-2007
Max A. Martinez, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Max A. Martinez,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200608161
Agency No. 5-03-5005
Hearing No. 320-2005-00171X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 21, 2005 final order 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the relevant time period, complainant held the position of Airway
Transportation System Specialist (Technician). Since 1989, complainant
was stationed at the Long Range Radar (LRR) facility which is 26 miles
outside of the town of Lusk, Wyoming. The LRR is located on a remote
mountain-top and provides 7-day radar coverage for the Denver Air Traffic
Control Center. At that time, there were five technicians who work at the
LRR (complainant, PL, RK, CW and ES). Complainant was the only Hispanic
employee. The employees live and work at the site in three-day shifts.
Depending on the circumstances, an employee works alone or with another
employee when their shifts overlap.
Complainant alleged that on June 11, 2002, RK verbally abused and made
accusations toward him. Complainant also alleged that on June 20, 2002,
he left work early after having a confrontation with RK about work he
had not completed prior to RK replacing him. According to complainant,
RK said to him "Max, if you would read the procedures!" and "What did
you do?" On June 24, 2002, complainant contacted an EEO Counselor
regarding the incidents with RK.
Complainant's first line supervisor (S1) first learned of complainant's
allegation of harassment by RK from the EEO Counselor. S1 placed
complainant and RK on different work shifts so they would not have to work
together until an investigation could be completed. On June 27, 2002,
S1 meet with complainant. S1 had both complainant and RK submit letters
regarding their concerns. Complainant stated that "RK can and does get
very uptight, tense, and has expressed angry behavior" which included
cursing the equipment, procedures, the agency and him. Complainant
admitted RK did not call him names, make racist or stereotypical remarks,
or speak derogatorily about Hispanics or minorities. RK described what
he believed were complainant's work performance deficiencies.
On September 17, 2002, mediation took place. At the conclusion of the
mediation, complainant stated he no longer had any issues with RK, but
that his issues were with the agency's Civil Rights Office. Since the
mediation, complainant and RK have been working together and neither
has complained to S1 about the other.
On September 27, 2002, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of national origin (Hispanic)
and in reprisal when he was subjected to a hostile work environment.
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. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing. Over complainant's
objections, the AJ issued a decision without a hearing on September
9, 2005. The AJ found that complainant failed to establish a prima
facie case of hostile work environment based on his national origin and
reprisal. Specifically, the AJ found that complainant failed to show
that he was subjected to harassment sufficiently severe or pervasive so
as to render his work environment hostile. The AJ also found no evidence
that the alleged harassment was because of complainant's membership in a
protected group. The AJ further found that once complainant informed
management of the claimed harassment, it took immediate action to
end the alleged harassment. The AJ also concluded that complainant
failed to establish a retaliation claim. Specifically, the AJ found
that complainant did not engage in prior protected activity, nor did he
suffer an adverse action by the agency.
The Commission agrees that complainant failed to establish a prima
facie case of a hostile work environment based on national origin
and/or prior protected activity. We find that a reasonable fact-finder
could not conclude that the challenged incidents, taken together, were
sufficiently severe or pervasive to establish a hostile work environment.
We also conclude that complainant presents insufficient evidence that
he was singled out for this treatment because of his protected classes.
See Fox v. General Motors, 247 F. 3d 169 (4th Cir. 2001); McLeod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate as no genuine issue of material fact is in
dispute See Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). Therefore, we AFFIRM the agency's final order.
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
November 30, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120060816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036