0120093272
01-07-2010
Angel Torres, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Angel Torres,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093272
Agency No. 9D1S09002
DECISION
Complainant filed timely appeals with this Commission from agency
decisions dated July 13, and July 21, 2009, 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. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (African American/Puerto Rican),
national origin (American born), color (Black), and reprisal for prior
protected EEO activity under Title VII when:
1. On June 24, 2008, complainant witnessed a verbal exchange between
two colleagues during which one (CW1) said to the other (CW2) "I don't
give a fuck about you, I don't give a fuck about this job, and I don't
give a fuck about going to jail, I will put your ass in a body bag";
2. on July 7, 2008, during an interview with the Labor Relations Officer
(LRO), the LRO said to complainant that CW1 "was not upset due to
any political issues from the incident on 24 June, it was more racial
issues."
3. on August 3, 2008, CW1 was assigned to Los Angeles Air Force Base as
Motor Patrol Paul-4;
4. when a Management Official (RMO1) stated it appeared that complainant
was "playing games" with him, due to complainant's request to attend
Commander Call/Defensive Tactics training on August 25, 2008, instead
of August 28, when CW1 was to attend;
5. on September 30, 2008, complainant's supervisor (RMO2) gave him
feedback which contained the statement "must be more proactive at Fort
Mac Arthur"; and
6. on November 10, 2008, RMO2 denied Complainant's request to change
training days.
The agency dismissed claims 1, 2, and 3 for untimely EEO counselor contact
and further dismissed all the claims for failure to state a claim.
On appeal, complainant argues that he incurred harm because he feared
for his safety due to CW1's actions.
Following a review of the record the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that he was subjected to unwelcome verbal or physical
conduct involving his protected classes, that the harassment complained of
was based on his statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has complainant shown he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Finally, complainant has
not shown that the alleged actions are "reasonably likely to deter the
charging party or others from engaging in protected activity." See EEOC
Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
January 7, 2010
__________________
Date
2
0120093272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093272