Mauricio Chamat v. Timothy Geithner , 381 F. App'x 728 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAURICIO CHAMAT, No. 09-55507
Plaintiff - Appellant, D.C. No. 3:07-cv-01010-W-JMA
v.
MEMORANDUM *
TIMOTHY GEITHNER, Secretary for the
Department of Treasury,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted April 6, 2010 **
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
Mauricio Chamat was terminated during his probationary period of
employment with the Internal Revenue Service (IRS). He brought this pro se
action alleging discrimination based on his race, national origin and age. He also
alleged his discharge violated the collective bargaining agreement (CBA). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court granted summary judgment for the Government on the discrimination
claims and dismissed the CBA claims. We affirm.
DISCUSSION
As a threshold matter, we consider the Government’s contention that
Chamat appeals only the district court’s dismissal of his CBA claims. Although
Chamat’s briefs are primarily devoted to that issue, he also reasserts his arguments
that the IRS failed to issue a timely decision on his complaint and that he was
harassed and terminated because of his race, national origin and age. Given
Chamat’s pro se status, we elect to review all of those arguments.
1. Timeliness of the IRS’s Decision
The IRS failed to complete its investigation of Chamat’s complaint within
the 180 days mandated by 29 C.F.R. § 1614.106(e)(2). Chamat argues as a
consequence his discrimination claims should be deemed true and he should be
reinstated with back pay. We disagree. The consequence of an untimely agency
decision, is that “the complainant may request a hearing by submitting a written
request for a hearing directly to the EEOC office.” 29 C.F.R. § 1614.108(g).
Chamat elected not to request an immediate hearing, but rather waited for the
IRS’s decision before filing his complaint with the EEOC.
-2-
2. Discrimination Claims
Chamat did not submit sufficient evidence to carry his burden of establishing
a triable issue of fact on his claims of discrimination. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing burden-shifting analysis).
It is undisputed that Chamat did not achieve the testing standards for his position
and that he failed three out of five of the critical job elements. There was no
evidence that the Government terminated his employment on any basis other than
his poor performance. Although Chamat points to some negative comments in his
evaluations, none reflects animus toward his race, national origin or age. As the
district court noted, Chamat offered no evidence to suggest he was terminated on
account of an impermissible factor.
Chamat also claims he was subjected to a hostile work environment. To
establish a triable issue of fact on that claim, Chamat was required to show (1) he
was subjected to verbal or physical conduct because of his race, national origin or
age; (2) the conduct was not welcomed; and (3) the conduct was sufficiently severe
or pervasive to alter the conditions of his employment and create an abusive
working environment. See Surrell v. California Water Serv. Co., 518 F.3d 1097,
1108 (9th Cir. 2008). Chamat argues he met that burden with evidence of negative
comments by supervisors that “made him feel inferior” and one incident when he
-3-
was told not to speak Spanish in the workplace. Again, we disagree. The negative
comments related to Chamat’s job performance rather than to his race, national
origin or age. See id. at 1108–09. Moreover, the comments and the reprimand for
speaking Spanish “were not sufficiently severe or pervasive to sustain a hostile-
work-environment claim.” Id. at 1109.
3. CBA Claims
Chamat claims the treatment he received from his supervisors and his
subsequent termination violated his rights under the CBA. Chamat did not,
however, elect to pursue any CBA remedy. See Saul v. United States, 928 F.2d
829, 835 (9th Cir. 1991) (noting an aggrieved federal employee must elect between
statutory remedies or the grievance procedures provided by a CBA, “but not both”)
(citing 5 U.S.C. § 7121(d)). Moreover, Chamat acknowledged in his amended
complaint that his “claims are neither grievable nor arbitrable under the collective
bargaining agreement” because he “had not yet completed his one year
probationary period.” Indeed, the CBA’s provision governing discharge for
unacceptable performance “applies only to bargaining unit employees who have
completed their probationary or trial period.” Thus, the district court correctly
dismissed Chamat’s CBA claims.
AFFIRMED.
-4-