Coleman H.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 20180120172440 (E.E.O.C. Oct. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coleman H.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120172440 Hearing No. 531-2015-00324X Agency No. IRS-14-0591-F DECISION On July 6, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 7, 2017 final action concerning his equal employment opportunity (EEO) complaint alleging 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Computer Engineer, GS-0854-15, at the Agency’s work facility in Lanham, Maryland. On October 1, 2014, Complainant filed an EEO complaint wherein he claimed discrimination by the Agency on the bases of his color (brown), national origin (Pakistani), and in reprisal for his prior EEO activity when: 1. In 2012, Complainant’s Supervisor ridiculed him and addressed inappropriate sexual remarks toward him. 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. 0120172440 2 2. In November 2013, management attempted to cut Complainant’s salary by inflating a telework issue and lowering his annual evaluation. 3. On May 22, 2014, Complainant’s supervisors lowered his Leadership Succession Review to “Not Met.”2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency with regard to claims (1) and (2). The AJ denied the Agency’s motion for a decision without a hearing as to claim (3) and held a hearing concerning claim (3). The AJ subsequently issued a decision in favor of the Agency. With regard to claim (1), the AJ observed that Complainant stated that before he began working for him, the official who would become his First Level Supervisor (S1) made inappropriate sexual remarks toward him at the facility cafeteria during a lunch break. The AJ noted that Complainant nevertheless wanted to work for S1 and dismissed the alleged sexual comments as an absurd joke. The AJ stated that these incidents stopped in 2012 and cannot be part of a pattern of harassment since the only alleged sex-based harassment occurred in 2012 and Complainant did not initiate contact with an EEO Counselor until July 2014. As for claim (2), the AJ observed that on October 15, 2012, Complainant and S1 had a dispute regarding Complainant’s telework schedule. S1 accused Complainant of unauthorized telework because he claimed Complainant did not have a current telework agreement in place. S1 initially sought to cut Complainant’s telework hours in half; however, Complainant reminded S1 that he had previously informed Complainant that he could work as much telework as he wanted due to Complainant’s senior status. Complainant ultimately lost no telework time. The AJ stated that this incident was insufficiently severe or pervasive to be part of a pattern of harassment. With regard to Complainant’s rating on his FY2013 performance evaluation, the AJ stated that Complainant initially received a rating of “Met” from his subsequent First Line Supervisor (S2). Complainant afterwards filed a grievance and this resulted in Complainant’s performance rating being raised to “Exceeded” by S1, now his Second Line Supervisor. The AJ reasoned there is no basis to find reprisal or discrimination since the overall rating was raised. The AJ noted that S2 accused Complainant in his performance appraisal of insubordination and that this remained in the appraisal after the grievance was resolved. The insubordination charge stemmed from Complainant ignoring S2 and calling him incompetent. The AJ stated that the insubordination was the reason S2 issued Complainant a “Met” rating. 2 The Agency dismissed an additional claim regarding a Treasury Inspector General for Tax Administration investigation. The AJ denied Complainant’s request to revive the dismissed claim. Complainant raised no challenges to the dismissal of this claim on appeal, and the Commission finds no basis to disturb the AJ’s decision to not revive it. 0120172440 3 The AJ found that no discrimination occurred with regard to claim (3). The Leadership Succession Review (LSR) requires supervisory assessments of thirteen behaviors and four competencies. The AJ stated that the first competency is personal leadership and includes the behaviors of self- development, communication and political savvy. The second competency is leading others and includes the behaviors of relationship management, group leadership, customer focus, and managing performance and development. The third competency is leading improvement and its behaviors are change management, innovation and risk management, and achievement orientation. The fourth competency is business results and its behaviors include problem solving and decision making, leveraging resources, strategic planning, and implementation. Two years prior to the LSR at issue, an LSR was done by another Supervisor who found Complainant to be worthy of promotion into management. With regard to the LSR at issue, the AJ stated that Complainant rated himself as being ready for senior management at all levels and for all competencies. According to the AJ, S2 rated Complainant progressing toward front-line management on personal leadership with ratings on the associated behaviors of front-line manager for self-development and “employee,” a lower rating, for communication and political savvy. Complainant was rated progressing toward front-line management for the second competency of leading others but “employee” rating for all of its behaviors. As for the third competency of leading improvement, Complainant received an overall rating of progressing toward front-line management with ratings on the behaviors of competent to be a front-line manager for change management and “employee” rating for innovation and risk management and achievement orientation. With regard to the fourth competency, S2 rated Complainant overall as progressing toward front-line management in business results with ratings of “employee” in problem solving and decision making and leveraging resources, and front-line manager in strategic planning and implementation. For his overall LSR rating, Complainant was assessed as not ready for management. The AJ noted that Complainant was detailed elsewhere during the final six months of Fiscal Year 2013. The AJ stated that S2 and S1 were Complainant’s front-line supervisors for the first six months and therefore it was appropriate for S2 to rate Complainant and for S1 to be the second- level reviewer. The AJ found that S2 acted reasonably in issuing the rating he did in light of Complainant’s difficulties in getting along with others, in getting into arguments and being insubordinate and not following through on his directions. The AJ stated that this affected most of the competencies and most of the behaviors. With regard to the incidents of insubordination, the AJ stated that Complainant called S2 incompetent as a manager, said that he didn’t want to talk to S2 anymore and failed to follow S2’s directions about contacting him. The AJ observed that Complainant argued with contractors as the meetings involved constant issues of conflict and tension. The AJ noted that Complainant was recognized as a subject matter expert, but that testimony indicated that his difficulty in getting along with others prevented him from being a manager. 0120172440 4 With regard to Complainant’s attempt to establish pretext, the AJ observed that Complainant’s primary witness, his Supervisor as of July 2014, was tainted and lacked credibility given that Complainant wrote the responses that this witness was supposed to provide and gave the witness a script that he brought onto the stand at the hearing. The AJ found that Complainant failed to establish that the Agency’s explanation for Complainant’s LSR rating was pretext intended to hide discriminatory motivation. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s LSR policy states that the LSR assessment is to be based on how the individual currently demonstrates the behavior or competency on the job. Complainant maintains that therefore any witness that testifies to being unaware of his current performance, for the last six months, at the time of the assessment, should be considered irrelevant. Complainant argues that his LSR rating was lowered based on at least six months of old information as neither S2 nor S1 were aware of his current performance at the time of the LSR. Complainant claims that both of his managers at the time of the LSR testified that they would have rated him ready for management. Complainant questions why S2 and S1 did not seek feedback from his current managers. Complainant maintains that his witnesses were disinterested, but that the Agency’s witnesses were biased against him. Complainant also challenges the credibility of S1 and S2 in light of certain inconsistencies in their testimony. In response, the Agency asserts that Complainant has not presented any argument on appeal concerning claim (1) and therefore the summary judgment as to this claim should not be at issue. With regard to claim (2), the Agency disputes that the grievance resolution showed that the charge of insubordination against Complainant was exaggerated. The Agency states that the fact that the grievance settlement reduced a Letter of Reprimand to a Letter of Admonishment and excised references to insubordination from Complainant’s performance appraisal does not mean that the misconduct never occurred. As for the claim that was considered at the hearing, the Agency asserts that the AJ made appropriate credibility determinations. The Agency notes that Complainant’s primary witness admitted to the AJ that he was reviewing the questions and answers given to him by Complainant while he waited to testify. The Agency argues that this witness’ receipt of a seven -page typewritten list of answers to be recited at the hearing raised serious questions for the AJ about the witness’ credibility. ANALYSIS AND FINDINGS The AJ’s Summary Judgment Decision – Claims (1) and (2) We shall initially address claims (1) and (2). The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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); 0120172440 5 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, Aug. 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Disparate Treatment 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency 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 Prods. 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). With regard to claim (1), we observe that the alleged incidents occurred in 2012. Complainant did not initiate contact with an EEO Counselor until July 2014, after the expiration of the 45-day limitation period. We find that Complainant has not submitted sufficient justification for an extension of the limitation period. Accordingly, the dismissal of claim (1) on the grounds of untimely EEO Counselor contact was proper and is AFFIRMED. As for claim (2), we shall assume arguendo that Complainant set forth a prima facie case of discrimination and reprisal. The Agency explained that S1 removed his threat to reduce Complainant’s telework time by half after Complainant reminded him that he told him he could telework as much as he wanted due to his senior status. 0120172440 6 With respect to Complainant’s performance appraisal, the Agency stated that Complainant’s rating of “Met” was raised to “Exceeded” pursuant to a grievance resolution and that Complainant’s initial rating of “Met” was due to his insubordination. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Complainant argues that his acts of alleged insubordination have been overstated and that they should not be cited since the grievance settlement reduced the Letter of Reprimand to a Letter of Admonishment. We find that these arguments are insufficient to establish pretext. Accordingly, the Agency’s determination that no discrimination occurred with regard to claim (2) is AFFIRMED. The AJ’s Decision After a Hearing Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Chapter 9, at § VI.B. (Aug. 5, 2015). We shall assume arguendo that Complainant set forth a prima facie case of discrimination and reprisal as to claim (3). The Agency stated that Complainant was rated as “Not Met” on his Leadership Succession Review (LSR). The AJ cited testimony as to Complainant’s difficulties in getting along with others, in getting into arguments and being insubordinate and not following through on managerial directions. The AJ stated that this affected most of the competencies and most of the behaviors. With regard to incidents of insubordination, the AJ stated that Complainant called S2 incompetent as a manager, said that he didn’t want to talk to S2 anymore and failed to follow S2’s directions about contacting him. The AJ noted that Complainant argued with contractors as the meetings involved constant issues of conflict and tension. In light of such testimony about Complainant’s deficiencies, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its rating of Complainant as “Not Met” on the LSR. Complainant challenges the credibility of the Agency’s witnesses, S1 and S2, but we discern no persuasive evidence that the ratings in the various competencies and behaviors were unwarranted. Complainant has not credibly refuted their assertions that he committed several acts of insubordination. We agree with the AJ’s finding that the Agency’s witnesses were more credible than the witness on behalf on Complainant who presented testimony prepared for him by Complainant. As for Complainant’s argument that S2 should not have completed his LSR and S1 should not have reviewed it because he had not worked for them for six months, we are not persuaded that S2 and S1 acted inappropriately. 0120172440 7 They were Complainant’s supervisors of record at the time the LSR was issued and they had directed his work prior to Complainant’s six months of work on a detail. The AJ observed that S1 and S2 received information from the officials supervising Complainant on his detail that he was difficult to work with. The AJ noted that Complainant was recognized as a subject matter expert, but the AJ appropriately found that his difficulty in getting along with others prevented him from being a manager. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s finding that Complainant has not proven discrimination by the Agency as alleged with respect to claim (3). Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision. 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. 0120172440 8 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 October 18, 2018 Date Copy with citationCopy as parenthetical citation