0520090610
12-10-2009
Victor A. Luna, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Victor A. Luna,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520090610
Appeal No. 0120070182
Hearing No. 451-2006-00053X
Agency No. 8Z0J05041
DENIAL
Complainant timely requested reconsideration of the decision in Victor
A. Luna v. Department of the Air Force, EEOC Appeal No. 0120070182
(July 9, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
At the time of events giving rise to this complaint, complainant worked
as a Maintenance Mechanic, WG-9, at Lackland, Texas Air Force Base.
On August 27, 2004, complainant filed an EEO complaint alleging that he
was discriminated against and harassed on the bases of race (Hispanic1),
national origin (Mexican), religion (Catholic), and age (over 40 years
old), when:
1. On or about April 2005, while explaining guidelines concerning time off
for employees to observe Pope John Paul II's funeral, a paint supervisor2
made the disparaging remark, "You don't need to listen to that, you're
not Catholic;"
2. On or about April 2005, a paint supervisor yelled at and threatened
him about parking a government vehicle in a certain location;
3. On or about March 2005, a paint supervisor precipitated a verbal
altercation over the proper location to store a vacuum cleaner;
4. On or about March 2005, despite not having any work to perform,
a paint supervisor refused to allow complainant to assist a coworker
with his work;
5. On or about January 2005, a paint supervisor accused complainant
of getting him in trouble over where complainant parked the government
vehicle; and,
6. On or about October 16, 2006, in response to complainant's query
about lunchtime, a paint supervisor stated that complainant could take
lunch when his "tongue was hanging out," the supervisor grabbed his own
crotch, and made a comment and gesture about using a male organ as bait
for fishing.
Additionally, complainant alleged that he was subjected to reprisal for
prior EEO activity when, on or about May 25, 2005, the agency issued a
performance evaluation that did not accurately reflect his performance
for the rating period.
Following a hearing, the Administrative Judge (AJ) issued a bench
decision finding that complainant had not been subjected to unlawful
discrimination or harassment. The AJ found that there was no evidence
that any of the alleged actions were motivated by race, national origin,
age, or religion. The AJ also found that complainant was not entitled
to a particular rating every year, and there was insufficient evidence
that complainant's evaluation was based on retaliation. The agency
fully adopted the AJ's finding of no discrimination.
The Complainant appealed the decision and argued that nine of his exhibits
were not allowed into evidence, all of his witnesses were not allowed to
testify, and he maintained that the AJ gave him some advice which made
him feel "dissuaded" from exercising his civil rights. The Commission
found that five of the rejected exhibits were unsworn statements,
including a statement from complainant's wife that did not present any
first hand knowledge of complainant's claims. Moreover, the Commission
found that the AJ had not abused his discretion when he excluded other
evidence from the file or testimony from witnesses who complainant had
not shown would provide relevant testimony or substantiate the claims in
this case. Further, the Commission found that complainant had failed
to articulate what the AJ's advice actually was; therefore, there was
no basis to conclude that the AJ had acted improperly in this case.
Lastly, the Commission affirmed the agency's finding that complainant
had not been subjected to unlawful discrimination or harassment.
In his request for reconsideration, complainant asserts that he was
not able to fully communicate the extent of the harassment that he was
subject to because the EEO Counselor was "a lady official" and he was
trying to be respectful. He contends that his supervisor subjected him
to humiliating and potentially violent conduct. Complainant asserts that
the agency had a duty to stop his supervisor's hostile conduct and that,
even though they were aware of the supervisor's behavior, the agency
did nothing to him. Further, with respect to his performance rating,
complainant questioned how he could have performed at his best based
on the hostile work environment to which he was exposed. Finally,
complainant contends that he has been subjected to reprisal because he
was transferred to a new supervisor following this matter.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The Commission finds that complainant failed to show
that the appellate decision involved a clearly erroneous interpretation
of material fact or law; or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency.
Further, the Commission finds that complainant's assertions regarding
discrimination, and harassment/hostile work environment were fully
addressed in the previous decision and complainant has not provided any
evidence which demonstrates that the finding of no discrimination was
in error. Additionally, we do not find credible complainant's assertion
that he was not able to articulate the extent of the hostility to which he
was subjected because he was counseled by a female EEO Counselor. We find
that complainant had the benefit of a hearing which provided him adequate
opportunity to articulate his complaint; as such this argument fails.
Finally, we note that if complainant believes that he is currently
being subjected to discrimination, he should contact an EEO Counselor.
Accordingly, the decision in EEOC Appeal No. 0120070182 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 10, 2009
Date
1 We note that, under the laws enforced by the Commission, the term
"Hispanic" denotes a national origin rather than a race group.
2 The record indicates that the paint supervisor was not in complainant's
supervisory chain of command but sometimes supervised facilities and
work areas in which complainant worked.
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