Avery S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

2020000221 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2020000221 Appeal No. 0120180734 Hearing No. 570-2015-00842X Agency No. IRS-14-0557-F DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120180734 (July 30, 2019). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c). EEOC Appeal No. 0120180734 During the relevant period, Complainant worked for the Agency as a Physical Security Specialist, GS-0080-11, in Washington. D.C. 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. 2 2020000221 On August 12, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on his disability and/or retaliatory animus for engaging in protected EEO activity. After an investigation of the formal complaint by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 11, 2017, the AJ assigned to the case granted the Agency’s motion for summary judgement and concluded Complainant failed to prove he had been subjected to discrimination or reprisal as alleged. On December 22, 2017, Complainant filed an appeal, which was docketed as EEOC Appeal No. 0120180734. The Agency argued that Complainant’s appeal was untimely filed. In support of this assertion, the Agency claimed it had issued its final order adopting the AJ’s decision on August 29, 2017. However, Complainant did not file his appeal until December 22, 2017, beyond the 30-day deadline. In response, Complainant asserted neither he nor his attorney ever received the Agency’s purported final order and, therefore, the filing deadline was not triggered. In support, Complainant provided email exchanges between his attorney and Agency representatives in which the Agency representatives could not produce documentation showing that the Agency had, in fact, transmitted a final order to Complainant or his attorney. The decision in EEOC Appeal No. 0120180734 recognized that the Agency failed to meet its burden of proving Complainant’s receipt of its final order. Nevertheless, the prior decision determined that even if Complainant did not receive the Agency’s final order, the AJ’s decision would have become the Agency’s final decision 40 days after it was issued. EEOC Appeal No. 0120180734 concluded that Complainant should have filed his appeal within 30 days of the date the AJ’s decision became the Agency’s final action. Based on this rationale, EEOC Appeal No. 0120180734 determined that Complainant’s December 22, 2017 filing was untimely and dismissed the appeal. Upon further consideration, we now conclude that there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances such as this where an AJ’s decision becomes final by operation of 29 C.F.R. § 1614.109(i). Rather, the time for Complainant to file an appeal in this instance is governed by the doctrine of laches - “an equitable remedy under which an individual's failure to diligently pursue their actions can bar their claims.” O'Dell v. Dep't of Health and Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). Here, we now conclude that the relatively brief period of time between the AJ’s decision and Complainant’s appeal (four months) did not justify the application of laches to dismiss the appeal as untimely. As such, we vacate our prior decision dismissing Complainant’s appeal as untimely filed and will now address, for the first time, the merits of his allegations that he was subjected to discrimination based on his disability and/or in reprisal for his EEO activity. 3 2020000221 Merits of Claim - Harassment/Hostile Work Environment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute that would require resolution at a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Untimely Raised Claims As already noted, Complainant filed his formal EEO complaint in August 2014. As an initial matter, the AJ dismissed a number of Complainant’s allegations of discrimination as untimely raised. These included allegations: of an unsuccessful attempt to revoke his job offer in 2012; several 2013 denials of training; a March 2013 altercation with a coworker; an April 2013 denial of participation in a PMF program; an April 2013 denial of permission to join the Language Services Executive Council; and a failure to promote him in October 2013 to GS-12 after his one- year anniversary of employment. The AJ concluded that Complainant’s initial contact with an EEO counselor on these matters occurred in June 2014 and, therefore, any incident predating May 12, 2014, was not timely raised and should be dismissed under 29 C.F.R. §§ 1614.105(a)(1) and .107(a)(2). After careful consideration of record, we concur with the AJ’s decision in this matter. As such, we find that she correctly only reviewed Complainant’s claims that occurred on or after May 2014. Timely Claims The AJ determined that Complainant timely alleged that he was discriminated based on his disability and/or in retaliation for his protected EEO activity when: 4 2020000221 a. Complainant was the only employee required to wear a suit. b. On June 5, 2014, the Program Manager gave Complainant notice of intent to terminate his employment and berated him for three hours. c. On June 5, 2014, Complainant’s telework agreement was revoked. d. On or about June 5, 2014, Complainant was reassigned to the New Carrollton Federal Building physical security line office. e. On or about June 5, 2014 Complainant found out his coworkers received an email instructing them not to allow Complainant to have any interaction with customers. f. On June 27, 2014, Complainant received a failing rating of 1.8 on his annual performance appraisal. g. After seeking EEO counseling, Complainant was ordered to use an OPM form to request leave while others just used Outlook calendar invites. h. On October 9, 2014, Complainant was informed that his Performance Management Fellow appointment was being terminated effective October 18, 2014. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The evidence of record shows that Complainant was medically discharged from the Air Force for Post-Traumatic Stress Disorder (PTSD) in 2001. Later, both the Social Security Administration and the Department of Veterans Affairs awarded Complainant disability benefits based on his condition. It is undisputed that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. 5 2020000221 In October 2012, Complainant was hired by the Agency under the Presidential Management Fellowship (PMF) program as a Physical Security Specialist, GS-11, in the Identity Credential and Access Management (ICAM) Division. As a PMF fellow, Complainant’s temporary two-year appointment was eligible for conversion to a permanent position provided he met the Agency’s certification of program completion requirements. Complainant was the only PMF fellow in ICAM. Complainant’s assigned PMF Hiring Official was the Program Manager. As such, the Program Manager was responsible for ensuring Complainant, as a PMF fellow, received at least 80 hours of formal interactive training per year and for identifying the eligibility requirements for conversion of the PMF fellow to a permanent position at the end of the program.2 The Program Manager stated that during the relevant period, he and Complainant communicated primarily via telephone or e-mail, although they met in person on occasion. Complainant was also assigned a Mentor, who had more frequent contact with him. In addition to the formal training, the PMF program required at least one developmental assignment for four to six months with full-time management or technical responsibilities consistent with the fellow’s formalized Career Learning Plan. During his tenure, Complainant rotated to the Security Standards and Enhancement (SSE) area within the Physical Security and Emergency Preparedness (PSEP) organization from late July 2013 to mid-November 2013, as well as to the Metro DC PSEP Territory Office from June through October 2014. As early as November 2012, Complainant shared information about his disability in conversations with his assigned Mentor. On a number of occasions, he had conversations with the Mentor, either in person or by email, concerning the symptoms of his PTSD and his medications. In February 2013, the Program Manager attested that he learned of Complainant’s PTSD through email correspondence with Complainant about his need to attend an appointment at the VA. The Program Manager asked Complainant what the appointment was for and he responded, “service- connected PTSD treatment.” Based on the evidence developed during the investigation, the AJ determined that responsible management officials articulated legitimate, non-discriminatory reasons for each of Complainant’s claims of discrimination. Regarding Complainant’s allegation that he was the only employee required to wear a suit, the Program Manager stated that on June 11, 2013, the Team Lead informed him that Complainant was wearing sweat clothes to the office. 2 Not all PMF position provide for conversion at the end. Each agency could decide to opt for conversion. While not altogether clear, it appears Complainant’s position was eligible for conversion. 6 2020000221 As a result, the Program Manager informed Complainant that wearing sweat clothes to the office was inappropriate even for the task he was working (shipping LCS equipment to remote locations) and that “more appropriate attire would be in order.” Furthermore, the Program Manager stated that the Agency has a dress code policy. Specifically, the Program Manager stated according to IRM 6.735 states, “You are expected to groom yourself in a manner appropriate to the surroundings into which your work assignments take you.” The Program Manager said he did not require Complainant to wear a suit, just more suitable attire for a business setting. The AJ correctly concluded that Complainant produced no evidence whatsoever that his disability played any role in this matter. Complainant next claimed that on June 5, 2014, the Program Manager told him he would be terminated and berated him for three hours. The Program Manager stated on June 5, 2014, he arranged a meeting with Complainant and his Mentor to address concerns that had arisen during his employment and said he did tell him that he had four months remaining on his appointment and if he did not turn things around he would not be able to recommend Complainant for a permanent position. The Program Manager described a series of issues that focused on perceived problems with Complainant’s communication skills, interaction with coworkers, office etiquette and being “combative.” The Program Manager described particular incidents in support of these concerns that had occurred over Complainant’s tenure. The Program Manager said, and Complainant confirmed, that he also complemented Complainant on his accomplishments in the technical aspects of his job. Based on this evidence, the AJ correctly concluded that while there was evidence of the positive aspects of Complainant’s work performance, there was also evidence confirming ongoing trouble spots throughout his tenure. Complainant failed again to demonstrate that the explanation for the meeting warning him of the need for improvement was a pretext for discrimination because of his disability. Regarding Complainant’s claim that he was reassigned, the Program Manager acknowledged reassigning Complainant. The Program Manager explained as part of Complainant’s internship “I was required to assign him several details to other functions over his year period to increase his knowledge, skills and abilities of the Physical Security program. This 120-day assignment was the last of his internship.” At the June 5 meeting, with the Program Manager told Complainant that his last developmental detail would be with the National Capital Territory (NCT) office (New Carrollton Federal Building). He stated that Complainant, when notified of this assignment, did not raise any objections. Regarding Complainant’s claim that his telework agreement was revoked, the Program Manager stated that he was not the responsible management official concerning Complainant’s telework privileges. The NCT Manager suspended Complainant’s existing telework agreement “due to the nature of the work [Complainant] would be assigned in his office. The work at Territory office, does not afford the opportunity to telework, as the work done is to support the Business Operation Divisions employees and field offices.” Again, the AJ correctly determined that Complainant failed to produce any evidence to suggest that the Agency’s reasons for detailing him to the NCT office and suspending his telework agreement was a pretext for disability discrimination. 7 2020000221 Regarding Complainant’s claim that he learned from an identified coworker (“Coworker 1”) that on June 18, 2014, everyone in the NCT office was told to avoid letting him interact with customers. In his affidavit, Coworker 1 expressly denied making such a statement to Complainant. Complainant failed to produce any other evidence to support his claim, and there was no claim that Complainant’s duties, which were primarily customer-oriented, were changed. Aside from his bare assertions, we concur with the AJ that Complainant failed to prove this incident ever occurred. Regarding Complainant’s claim that he received a failed rating of 1.8 on his annual performance appraisal, the record shows that Complainant received two performance appraisals during his tenure. In his first appraisal, covering the period ending May 2013, he received a “fully successful.” On June 27, 2014, he received a failing rating of 1.8. In that appraisal, the Program Manager rated Complainant as having failed in three of five categories: Employee Satisfaction, Customer Satisfaction-Knowledge and Customer Satisfaction-Application. Complainant was rated as fully satisfactory in Business Results-Quality and Business Results-Efficiency. The primary issue identified for the poor rating were concerns and examples of Complainant’s ongoing problems with “interacting in a professional manner with customers and coworkers.” The Program Manager focused on issues Complainant was having with sponsorship duties and had directed him to retake the Sponsorship role training in Educational Learning Management System (“ELMS”). He stated that he also talked with the KC Territory Manager “to ascertain what the issues were with [Complainant] in his service to them as their Sponsor in USAccess. [KC Territory Manager] stated that [Complainant] did not fully provide the requested information to her staff as requested to rectify issues in USAccess. She then provided me several examples via e-mail.” Furthermore, the Program Manager stated that he shared the examples from the KC Territory Manager with Complainant and “discussed with him where I felt he was not providing the complete support to [KC Territory Manager’s] staff and that he needed to communicate fully to ensure he is answering his customers concerns.” The AJ determined that the Program Manager’s overall evaluation of Complainant’s performance reflected the opinions of both managers and coworkers who worked with him, and there was no evidence that discriminatory or retaliatory animus played a role in the appraisal. We discern no reason to challenge this conclusion by the AJ. On October 9, 2014, Complainant was informed that his PMF appointment was being terminated effective October 18, 2014. The Program Manager stated that on October 9, 2014, he sent Complainant an email notifying him that effective October 18, 2014, “we would be terminating his appointment with the IRS and that his last official day on the job would be Friday, October 17, 2014.” The Program Manager noted that management had concerns with Complainant’s continued inability to connect with customers and staff members and that “he did not improve sufficiently enough in the customer service and interaction area to change our recommendation and decision.” It is undisputed that the Program Manager was notified on July 8, 2014, that Complainant was in EEO counseling and that this knowledge preceded the issuance of the notice of termination. Therefore, Complainant established a prima facie inference of retaliation. 8 2020000221 However, the record shows a long history of the Program Manager expressing concerns to Complainant about his interpersonal and professional skills with both customers and coworkers necessary for success in the organization. These concerns had been expressed to Complainant before he sought EEO counseling and he had been told that failure to improve would result in his termination. Therefore, like the AJ, we cannot conclude that retaliatory animus played any role in the decision to terminate Complainant. While the record shows Complainant had displayed strengths in many of the technical aspects of his job and had some positive reviews, there was ample evidence of negative feedback received about his ability to interact positively with managers, coworkers and customers. The evidence does not support a finding that either Complainant’s disability or his EEO activity played a part in motivating the decision to end his employment with the Agency. CONCLUSION The decision in EEOC Appeal No. 0120180734 to dismiss the appeal as untimely filed is VACATED. Upon further consideration, we AFFIRM the Agency’s final order adopting the AJ’s decision concluding no discrimination or unlawful retaliation was proven. 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. 9 2020000221 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. 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 January 22, 2020 Date