Octavio C.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 7, 2018

0120181831 (E.E.O.C. Aug. 7, 2018)

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.
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[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.

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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).

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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.

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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.
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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