Octavio C.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionAug 7, 20180120181831 (E.E.O.C. Aug. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Octavio C.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency. Appeal No. 0120181831 Hearing No. 480-2014-00178X Agency No. 5Z1S12003 DECISION On May 5, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 23, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Plumber, WG- 4206-09, at the Agency’s Vanderberg Air Force Base in California. Complainant began working for the Agency in April 2010. He resigned from the Agency on November 27, 2012. On October 31, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male). In its November 20, 2012 final decision, the Agency determined that Complainant’s formal complaint was comprised of the following claim: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120181831 2 [Complainant] was sexually harassed by [a named coworker] when on approximately August 27, 2012, [the alleged harasser] dropped or placed a quarter down Complainant’s buttocks in front of 90% of the airmen assigned to CES/CEOIU while in the breakroom. On November 20, 2012, the Agency dismissed Complainant’s formal complaint for failure to state a claim reasoning that the alleged incident does not state an actionable claim of harassment. Complainant appealed the Agency’s dismissal to the Commission. In EEOC Appeal No. 0120130816 (May 8, 2013), we reversed the Agency’s final decision dismissing the formal complaint and remanded the complaint for further processing. At the conclusion of the investigation on the remanded claim, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on February 5, 2018. The Agency subsequently issued a final order on March 23, 2018. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant argues that the Agency never informed him of the reason why it was planning to eliminate his job. Complainant also argues the subject of retaliation was never addressed by the AJ. Complainant also notes the Agency’s motion for summary judgment provided evidence that Complainant was peeing in front of a high security building. Complainant claims this evidence is false. Complainant states that Level 5 buildings have a 50- yard natural zone where only individuals can enter. He states there is also a perimeter road that is regularly patrolled. Complainant claims the AJ used this misleading evidence in her decision. In its appellate brief, the Agency responds to Complainant’s argument that there was misleading evidence in the Agency’s motion to dismiss without a hearing. The Agency states Complainant’s assertion is irrelevant because it has no bearing on the issue of whether the AJ correctly decided to grant the Agency’s motion for a decision without a hearing on the issue of Complainant’s sexual harassment claim. Moreover, the Agency notes that according to his statement in the report of investigation, Complainant admitted to urinating outside of a high security building. The Agency also responds to Complainant’s reprisal allegation. The Agency notes the reprisal allegation was not properly raised since Complainant never amended his October 2012 complaint to include a reprisal allegation. 0120181831 3 The Agency argues that Complainant did not establish a prima facie case of a hostile work environment. The Agency requests the Commission affirm the AJ’s decision implemented by its final order. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). At the outset, we find that the present complaint consists of only one allegation, whether Complainant was sexually harassed by the Tech Sergeant when on approximately August 27, 2012, the Tech Sergeant dropped or placed a quarter down Complainant’s buttocks in front of 90% of the airmen assigned to CES/CEOIU while in the breakroom. We note this was the sole issue raised in Complainant’s complaint, was the only issue remanded by the Commission for investigation in our prior decision, and was the only issue investigated in this case. Further, we note that while the case was pending before the AJ, in an April 12, 2016 Complainant’s Response to Notice of Assignment and Order Complainant acknowledged this was the only issue accepted and investigated in this case. Complainant further stated that, “No motions requesting an amendment to add an additional claim(s) have been made in this case.” We note that on appeal, Complainant does not dispute the Agency’s statement that Complainant never amended his October 2012 complaint to include a reprisal allegation or a claim regarding his removal/resignation from the Agency. To establish a claim of harassment a complainant must show that: (1) he belongs to 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 his statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc, EEOC Notice No. 915.002 (Mar. 8, 1994). 0120181831 4 At the time of the incident, Complainant and approximately 10-15 coworkers were in the breakroom. When the Tech Sergeant entered the room to conduct a meeting, Complainant was telling a story to two coworkers about how a third coworker’s pants fell down when they were at a nightclub and that Complainant told the third coworker to pull his pants up or he would “fuck him in the ass.” The Tech Sergeant told Complainant to stop telling that story. The Tech Sergeant saw Complainant sitting and that his pants were down and exposing his buttocks. The Tech Sergeant told Complainant that no one wanted to see Complainant’s butt either. The Tech Sergeant asked a Senior Airmen for a quarter and then flipped the quarter towards Complainant’s exposed butt and the quarter fell on the floor. Some coworkers laughed and Complainant stood up and told the Tech Sergeant, “I ought to pull your pants down and fuck you in the ass,” and then left the room. Complainant returned a few minutes later and asked where the quarter was so that he could purchase a candy bar. Upon review, we find the alleged incident was not sufficiently severe or pervasive to establish a hostile work environment. While the complaint was sufficient to state a claim that a hostile work environment might exist, we find that the investigative record, taking everything asserted by Complainant as true, fails to show a severity necessary to constitute a hostile work environment. Complainant’s sexual harassment claim consists of a single incident. 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). For purposes of this decision, the Commission assumes the incident occurred as alleged by Complainant. However, we find that the record shows that the incident was not severe, physically threatening, or an unreasonable interference with Complainant’s work performance. The Commission finds that the isolated nature of the conduct at issue was insufficiently severe or pervasive to establish sexual harassment. Moreover, we find Complainant did not establish that the alleged action occurred because of his sex. We note that in his affidavit when asked why he believed he was discriminated against based on his sex, Complainant stated that he “was subjected to unwanted sexual advances” and that “It seemed that [the Tech Sergeant] did not like me for whatever reason.” Complainant stated, “It seemed that he would always try to embarrass me or make me look bad. I just think he was odd and weird because he was a grown man that had a poster of Justin Bieber in his work area.” Despite Complainant’s characterization, we find the incident at issue did not constitute a sexual advance. There is no indication that the incident had anything to do with Complainant’s sex or that there were any sexual advances alleged or shown in this complaint. Moreover, we note that in response to the Agency’s Interrogatories, Complainant stated that “My gender is not relevant to the issue. What is important is that a violation of my civil rights has occurred.” Upon review, we agree with the Agency’s determination that the incident alleged does not rise to the level of a discriminatorily hostile work environment. A review of the record reveals that the allegation constituted a single incident and we find Complainant failed to show by a preponderance of evidence that the Agency’s actions were based on his sex. 0120181831 5 CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 0120181831 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 7, 2018 Date Copy with citationCopy as parenthetical citation