0120091426
05-14-2009
Micah W. Maziar, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Micah W. Maziar,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120091426
Agency No. 2007-20923-FAA-04
DECISION
Complainant filed an appeal from an undated final agency decision
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 accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as Air Traffic Control Specialist at the agency's Toledo Air
Traffic Control Tower in Toledo, Ohio.
The record reflects the following chronology of events. On November
13, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of sex (male).
In its December 27, 2006 final agency decision the agency determined
that complainant's complaint was comprised of the following claim:
[Was complainant] discriminated against because of [his] sex (male)
in that [he was] not allowed to wear a kilt pursuant to FAA's new dress
code, adopted on approximately September 3, 2006, whereas female employees
are allowed to wear skirts and dresses?
The agency dismissed complainant's complaint for failure to state a claim.
In addition, the agency dismissed complainant's complaint on the alternate
grounds that complainant previously raised this matter in the negotiated
grievance process. The agency stated that complainant filed a grievance
on September 10, 2006, with respect to the same alleged incident set
forth in his EEO complaint.
Complainant filed an appeal with the Commission from the agency's
December 27, 2006 final decision dismissing his EEO complaint. In Maziar
v. Department of Transportation, EEOC Appeal No. 0120071302 (June 22,
2007), req. for recons. den. EEOC Request No. 0520070744 (August 29,
2007), the Commission found that to the extent that complainant claimed
that he was subjected to discrimination when he was told he could not
wear a kilt, the agency properly dismissed this claim on the grounds
that complainant previously raised this matter in the grievance process.
However, the Commission found that complainant, in his formal complaint,
also alleged that he was subjected to harassment by management officials
when they made derogatory comments regarding male employees wearing kilts.
Specifically, complainant stated that "management officials made several
disparaging remarks including: 'something must be wrong with you if you
spend $200 on a dress; 'you don't actually go anywhere while wearing
that do you?' and 'do you wear that when you're out with your wife?'"
The Commission remanded the harassment claim back to the agency for
further processing.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In this undated final decision, which is the subject of the instant
appeal, the agency found that complainant failed to prove that he
was subjected to discrimination as alleged. The agency found that
"the alleged harassing conduct consisted of three statements regarding
the wearing of the kilt, which [a named Manager, M1] denied making.
The only witness to these statements was a co-worker, who also filed
an EEO complaint, regarding the same incident. Even if we look at the
facts in the light most favorable to complainant and assume the comments
were made, they do not rise to the level of constituting hostile work
environment harassment. The alleged comments were not threatening,
and there is no evidence that the comments had the purpose or effect of
unreasonably interfering with the complainant's job performance."
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's final decision finding
no discrimination is improper. Specifically, complainant states that
the agency is "using the same reasoning to deny my complaint after the
[Commission] remanded it back to the [agency]."
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).
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.
Upon review of the record, we find that complainant has failed to
establish that he was subjected to unlawful harassment. While complainant
and his co-worker state that complainant was subjected to several
derogatory comments by a manager,1 we find that these statements are
not sufficiently severe to establish that complainant was subjected to
unlawful harassment. In addition, complainant has not established that
the frequency of the comments was sufficiently pervasive to alter the
conditions of complainant's employment. While complainant on appeal
states that the Commission previously remanded this matter back to the
agency, we note that the Commission in EEOC Appeal 0120071302 remanded
this matter back to the agency for a complete investigation after
the agency dismissed complainant's complaint on procedural grounds.
Based on the report of the investigation and the entire record, we find,
for the reasons set forth above, that complainant has failed to establish
that he was subjected to unlawful harassment.
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 finding no discrimination.
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
May 14, 2009
__________________
Date
1 The record reflects that the manager denies making the comments at
issue.
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0120091426
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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