Agency.

Equal Employment Opportunity CommissionJul 13, 2005
02a50007 (E.E.O.C. Jul. 13, 2005)

02a50007

07-13-2005

Agency.


Michael J. Caruth v. Department of the Treasury (Internal Revenue Service)

02A50007

July 13, 2005

.

Michael J. Caruth,

Grievant,

v.

John W. Snow,

Secretary,

Department of the Treasury

(Internal Revenue Service),

Agency.

Appeal No. 02A50007

Agency No. G200211817

DECISION

Grievant filed a timely appeal with this Commission from a final agency

decision denying his grievance of unlawful 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., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. In his grievance, the grievant alleged that

he was subjected to discrimination on the bases of sex (male), age

(D.O.B. 8/25/56), and disability (Tourettes Syndrome)<1> which created

a hostile work environment when he received negative performance

recordation, a lowered evaluation, and did not receive recognition for

the additional duties he performed beyond his normally assigned duties.

The record reveals that on June 3, 2002, a grievance was filed on behalf

of the grievant regarding the performance appraisal and retention standard

rating he received for the rating period May 2001 through April 2002.

Grievant alleged that Supervisor intentionally lowered his evaluation

based upon factors other than his actual job duties and subjected him

to discriminatory evaluations of his work. At the conclusion of the

grievance process, the agency issued its Step 3 decision on October 7,

2003 which found no discrimination. Specifically, the agency decision

held that no information was presented substantiating a claim of

discrimination and that the rating of record given to the grievant

was commensurate to the record of performance documented. The Step 3

decision determined that grievant actually received a positive evaluation

(an overall rating of Exceeds Fully Successful) and noted that the lack

of negative performance recordation neither entitled him to an employee

rating of Exceeds on an individual aspect nor guaranteed an overall

rating of Outstanding for a particular critical element.

EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant

may appeal to the Commission from a final decision of the agency,

the arbitrator, or the Federal Labor Relations Authority (FLRA) on a

grievance when an issue of employment discrimination was raised in a

negotiated grievance procedure that permits such issues to be raised.

Disparate Treatment

In the absence of direct evidence of discrimination, grievant's claim is

examined under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). First, grievant

must establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination; i.e., that a prohibited consideration was a factor

in the adverse employment action. Id. at 802. Next, the agency must

articulate a legitimate, nondiscriminatory reason(s) for its actions.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). If the agency is successful, then the grievant must prove,

by a preponderance of the evidence, that the legitimate reason(s)

proffered by the agency was a pretext for discrimination. Id. at 256.

Grievant can prove pretext directly by showing a discriminatory reason

more likely motivated the agency or indirectly by showing that the

agency's proffered explanation is unworthy of credence. Id.

Upon review, we find that the agency's decision was proper.

Assuming arguendo that the grievant established a prima facie case of

discrimination, the agency articulated legitimate, nondiscriminatory

reasons for grievant's performance appraisal and retention standard

rating, namely that the rating of record was commensurate to the record

of performance documented. We find grievant has failed to offer any

evidence to show that the agency's articulated reasons for his evaluation

were more likely than not a pretext for discrimination.

Hostile Work Environment

It is well-settled that harassment based on an individual's gender, age,

and disability is actionable. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57 (1986). In order to establish a claim of harassment

under those bases, the grievant must show that: (1) he is a qualified

individual with a disability covered under the Rehabilitation Act and/or

engaged in prior EEO activity; (2) he was subjected to unwelcome conduct;

(3) the harassment complained of was based on his disability and/or

prior EEO activity; (4) the harassment had the purpose or effect of

unreasonably interfering with his work performance and/or creating an

intimidating, hostile, or offensive work environment; and (5) there is a

basis for imputing liability to the employer. See Flowers v. Southern

Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox

v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's

conduct should be evaluated from the objective viewpoint of a reasonable

person in the victim's circumstances. Enforcement Guidance on Harris

v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

We find that grievant failed to show that the incidents alleged rose to

the level of unreasonably interfering with his work performance and/or

of creating an intimidating, hostile, or offensive work environment.

Accordingly, the agency's final decision finding no discrimination

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 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).

GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

July 13, 2005

__________________

Date

1For purposes of this decision the Commission assumes without finding that

grievant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).