0120113458
08-21-2013
Charles W. Jonas, Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Charles W. Jonas,
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120113458
Hearing No. 520-2010-00291X
Agency No. IRS-09-0493-F
DECISION
On June 24, 2011, Complainant timely filed an appeal from the Agency's May 26, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Appeals Officer with the Agency's Internal Revenue Service (IRS), Office of Appeals in Boston, Massachusetts.
On July 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminatorily harassed him based on his race (Black), sex (male), disability (stroke causing significant left body weakness with left foot drag and left arm weakness resulting in reduced mobility) and reprisal for prior protected activity in violation of Title VII and the Rehabilitation Act when:
1. While he was out on leave recovering from his stroke, around August 2009 his first line supervisor (S1) went through the contents of his office and removed files;
2. On or about February 5, 2009, he received his annual performance evaluation with a rating of 4.2 (overall rating of Exceeds Fully Successful) by S1, which was lower than his prior year's rating of 4.6 (overall rating of Outstanding);
3. On or about February 17, 2009, S1 provided negative feedback to his successor first line supervisor (S2);
4. From August 1, 2008 through March 1, 2009, when requesting sick leave, S1 advised him of the benefits of retirement without his request for that information;
5. On or about March 4, 2009, S2 required his presence at all group meetings, and other employees were not so required; and
6. He was discriminated against based on his disability when on or about March 26, 2009, his request for reasonable accommodation in the form of a waiver of processing deadlines was denied by management.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). He requested a hearing. The AJ granted the Agency's motion for a decision without a hearing and made a decision finding no discrimination, which the Agency adopted.
The AJ found that Complainant failed to make out a prima facie case of reprisal discrimination. She reasoned that he did not engage in EEO activity prior to initiating contact with an EEO counselor on March 9, 2009, and all the events he claimed were retaliatory occurred before then. The AJ found that while Complainant filed a grievance under the collective bargaining agreement (CBA) on October 30, 2008, it did not involve protected activity.
The AJ assumed arguendo that Complainant was an individual with a disability (as we also do here). She found that Complainant did not make out a prima facie case of harassment because the alleged harassing behavior was not sufficiently severe and pervasive to alter the conditions of his employment and there was no evidence linking the Agency's actions to his protected groups.
The AJ found that assuming arguendo that Complainant established a prima facie case on any basis, the Agency articulated legitimate, non-discriminatory reasons for its actions and Complainant failed to prove pretext.
Complainant had a stroke, and was out of work from July 19, 2008 to October 8, 2008. Regarding incident 1, the AJ pointed to S1's statement that she went into Complainant's office during his long-term absence to locate files she needed to respond to taxpayer inquiries. S1 added she also did so to retrieve and reassign some of his cases, i.e., first all those on which he had not yet started working, then later those with less developed work, then mid-developed work, and ultimately leaving only those which Complainant had done 80+% of his work. The AJ found that Complainant produced no evidence S1's reason was pretext.
On incident 2, the AJ pointed to S1's statement that Complainant did not receive an overall rating of Outstanding because he failed to timely process two cases in his inventory. The AJ found that Complainant did not deny the above delay, nor show he was disparately treated.
Regarding incident 3, the AJ found this regarded an email S1 sent Complainant, with a copy to S2, which read as follows:
Charles, I received a call from [taxpayer representative] regarding the innocent spouse case. He has received the statute of extension (sic) and is upset he has not heard from you and the case should be resolved. I updated [taxpayer representative] with the status of the case from the last time we spoke; of remaining actions to include review the divorce decree and from there you were to make a determination. [Taxpayer representative] states the (sic) knows about the divorce decree and it does not pertain to the income at hand but to the pension, this was explained to the revenue agent. I told [taxpayer representative] that I could not speak to facts I did not have first hand knowledge of and this would be part of Charles' analysis and determination.
In addition [taxpayer representative] was updated that you were transferred to another team and your new Manager is located in Long Island, NY. [Taxpayer representative] would like a plan of action he can depend upon. [Taxpayer] representative states Charles, you told him he would have a decision last December. [Taxpayer] representative does not want to sign the extension without a timetable. I have communicated this information to [S2] and will include it in your activity record. I will call [taxpayer representative] back with an update of a potential follow-up in early March if the case is unresolved. I will call [taxpayer representative] back and update I have communicated this information to both Charles and [S2].2
S1 explained that the taxpayer representative directly called her, and as a common courtesy, she would have called the new supervisor to inquire whether she wanted to handle the inquiry since she had no knowledge of Complainant's inventory and was just assigned Complainant. The AJ found that the email speaks for itself, that Complainant does not deny that it reflected true events, nor provide evidence linking it to a protected basis.
On incident 4 S1 explained that Complainant exhausted his sick leave by August or September 2008, he was then approved for the maximum amount of advanced sick leave which would be used up by mid-October 2008, and at that time his expected report to work date was at the end of December 2008. S1 stated she sent Complainant the complete package of the Internal Revenue Manual (IRM) and all options as it related to advance sick leave, repayment procedures, leave bank information, potential part time work, and disability retirement. She stated they explored options, and one was if he qualified for disability retirement the repayment of advance sick leave would be forgiven. Referring to this statement, the AJ found that S1 was required under Agency regulations to provide retirement information to employees seeking advanced sick leave, and Complainant did not prove pretext.
Regarding incident 5, the AJ found that the Agency explained that the language requiring Complainant to attend group meetings unless he submitted medical documentation would require him to travel because he was not located in the same post as his work group. The AJ found the Agency explained this language was inadvertently included in a draft memorandum of its response to Complainant's request for reasonable accommodation and was removed from the final version, and found Complainant failed to prove pretext. Complainant did not contend that in practice he was ever subjected to this requirement.
On claim 6, the AJ found that the Agency explained that it declined to waive Complainant's processing deadlines because it concluded he was capable of meeting them by halving his inventory, and he did not prove pretext. The AJ also found that the Agency was not required to lower the performance standards of a position as a form of reasonable accommodation.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
On appeal, Complainant argues that he established a prima facie case of reprisal discrimination. He notes that his October 30, 2008, grievance contained allegations of race and disability discrimination. The Agency's CBA allowed for raising allegations of discrimination in the grievance process, and a review of the grievance reveals he raised them therein - explicitly contending he had a disability for which he was entitled to reasonable accommodation under the Rehabilitation Act, contending it was not provided, and alleging that he was the only black appeals officer and the Agency was trying to bring that number down to zero. Moreover, Complainant requested reasonable accommodation prior to returning to work, which is protected EEO activity. But we agree with the AJ's finding as further explained below that regarding his claims Complainant has not shown a nexus between any of his protected groups (including prior protected EEO activity) and the Agency's alleged discriminatory actions.
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994). When a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Harris, 510 U.S. at 21.
We agree with the AJ's finding that incidents 1 through 6, taken together, do not rise to the level of actionable harassment -- they don't comprise an environment where the workplace is permeated with intimidation, ridicule and insult. In making this finding, we observe that incident 5 occurred in a draft document, not the final version. Accordingly, we agree with the AJ's finding that Complainant was not discriminatorily harassed.
But incidents 2 and 6 - the annual performance appraisal rating and denial of a reasonable accommodation constitute independent tangible actionable claims of discrimination.
We turn to incident 2 first. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with here, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In notes about an October 14, 2008, meeting with Complainant on his inventory shortly after he returned to work, S1 wrote that in looking for files which needed follow up action (apparently while he was still out), she noted that the appearance of his office was "awful," i.e., piles of papers everywhere, the floor had a path to get from the door to his chair, three visitor chairs were overloaded, two bookcases, a table, under the table, on windowsills, two file cabinets were overflowing with files, loose paper, supplies and boxes, and data included live cases, closed cases, telephone call notes, and pads of paper. She indicated that in looking for the above cases, she found two very old ones. One regarded tax returns from 1995 through 1997 which contained Complainant's Appeal Case Memo (ACM) and note from processing from 2003. S1 wrote that Complainant stated the case was closed and resolved, that it was returned to him for no apparent reason, and he did not know what to do with it. In the meeting notes S1 wrote that it appeared the case was with Complainant since 2003, and asked that he secure transcripts to determine if the claims were processed and their current status. S1 continued that it appeared the second case was closed, was sent to the collection group, and then rerouted to Complainant, with the last action being August 2003. S1 wrote that Complainant stated the case was closed and he did not know why it was returned to him or where to resend it. S1 asked Complainant to secure transcripts to determine if the offer was ever processed and the current collection status. Report of Investigation (ROI) at 416.
S1 referred to these two cases in Complainant's appraisal. She noted neither were found in the Appeals Centralized Database System (ACDS), which Complainant indicates meant they were closed and no longer on his inventory list. In Complainant's appraisal, S1 wrote both cases required further processing, the first a refund with a note in the ACM to verify the allowed amount, and the second an accepted offer of compromise, and all of this should have been in completed in 2003.
S1 stated that while the cases were closed at one point, they were rejected and returned to Complainant for further action long prior to her being Complainant's supervisor. She stated the first required a refund with interest, and the second the correct posting of a collection.
In his statement, Complainant countered that he timely submitted both cases for closure long ago, and at no point recalled having either thereafter. On appeal Complainant refers to this, and argues that had there been a hearing, he would have secured testimony from an identified Appeals Processing Section (APS) Lead Tax Examiner about case processing procedures, as follows: The removal of the cases from ACDS meant Complainant processed the cases to one of his former supervisors, who approved their closing in 2002 and 2004 for review by APS, who returned them to the supervisor, who in turn should have created a control and returned them to Complainant. Complainant argues there is no evidence of the creation of a control in the record.
We find that there is no genuine issue of material fact. While Complainant writes that he does not recall seeing the two old cases in his office and about the typical procedures for their return to an Appeals Officer after a closure, he has not shown that S1 did not have a good reason to believe what she did. Complainant's office was highly disorganized and overflowing with papers, so one could reasonably believe cases therein could get lost. He submitted both cases for closure, and they were returned for further action years prior to 2008. Assuming they would have initially gone to one of Complainant's prior supervisors, S1 could reasonably believe he would have then returned them to Complainant since they required further processing.
S1 also wrote in Complainant's appraisal that another of his cases had several power of attorneys (POAs), and none checked a box to keep the prior POA in effect, and because a statute of limitations form was signed by a now invalid POA, a new statute of extension had to be signed by the taxpayer to ratify the intention of extending the statute of limitations. On appeal, Complainant argues that he is being penalized for a case where the statute of limitations did not expire. Complainant's second line supervisor, however, explained that had the taxpayer not elected to sign the subsequent extension, it was likely the case would have been deemed barred by the statute of limitation, and there are detailed statute procedures to avoid such a situation. S1 stated this problem should have been caught by Complainant prior to his illness. Complainant has not raised a genuine issue of material fact regarding this matter.
On issue 6, Complainant contends that during long absences, inventories were regularly transferred away from absent employees, and when he returned he asked for a fresh inventory that was not aged, as others received. While Complainant cited several comparative employees, the record only contained specific information on one of them about what occurred. Comparison 1 (white female, GS-13), at ROI Tab 33, explained she went out on extended leave for an adoption prior to S1 managing her group, and S1 took over while she was out. She explained that she knew in advance she would be on extended leave, discussed this with her prior supervisor who stopped assigning her cases so she could close everything she had open. Comparison 1 stated she worked her inventory down to zero prior to going out on leave. This situation is different than Complainant's, and does not raise an inference of discrimination.
We agree with the AJ's assessment, for the same or like reasons given by the AJ, that Complainant did not prove discrimination on the remaining incidents, i.e., 1, 3, 4, and 5, and find for the same reasons he failed to show reprisal discrimination on these matters.
The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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), at 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 77960, Washington, DC 20013. 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).
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 (Z0610)
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
August 21, 2013
__________________
Date
1 Complainant alleged three other incidents as actionable discrimination that were dismissed by the Agency and the AJ. They indicated the incidents would be used as background information. On appeal Complainant does not contest this. Accordingly, we do not address the dismissal.
2 A copy of the email is not in the record. On appeal, Complainant references the email, and does not indicate it was incorrectly quoted by the AJ.
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0120113458
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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