                                                                           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                           NOT FOR PUBLICATION                              JUN 04 2010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.




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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


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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.


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