Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jul 25, 2014

0120130063 (E.E.O.C. Jul. 25, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120130063

Hearing No. 460-2011-00165X

Agency No. IRS-11-0057-F

DECISION
Complainant filed an appeal from the Agency’s August 8, 2012 Final Order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s Final Order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Revenue Agent at
the Agency’s Small Business, Self-Employed facility in Houston, Texas. Complainant was
hired to serve a two-year probationary period on June 22, 2009. On December 26, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Black), national origin (Nigerian), disability (mental), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the
Rehabilitation Act of 1973 when:

1. Complainant was subjected to harassment that included the following incidents:

a. In August or early September 2009, Complainant’s manager, M1, handed him
his pocket commission and said, "[Complainant], here is your commission, I
hope you do not use it to harass people on the street."

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b. On September 23 or 24, 2009, M1 asked "[Complainant], do you think you can
do this job? Can you speak effectively to a lawyer? Can you speak effectively
to a judge? Can you speak effectively to an Accountant?"

c. In April 2010, M1 said, "You are in America. If you want to work in America,
you should learn how to speak and write American English."

d. On May 28, 2010, Complainant was told that he was being terminated and
Complainant was harassed to return IRS property.1

e. On May 31, 2010, Complainant was denied a grade level increase.2

f. In November 2010, Complainant’s job assignments were removed.

g. On November 4, 2010, while going on vacation to Nigeria, Complainant’s co-
worker, E1, said to Complainant, "I hope you are not going to the Al Qaeda
camp.”

h. On January 11, 2011, Complainant was terminated from his Revenue Agent,
GS-512-09 position during his probationary period.

2. Complainant was denied a reasonable accommodation on the basis of disability
on December 15, 2009, and on five subsequent occasions.

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). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s November 29, 2011 motion for a decision
without a hearing and issued a decision without a hearing on July 25, 2012.

Harassment

In her Decision, the AJ found that Complainant failed to establish a prima facie case of
harassment taking into consideration the incidents described in claim (1) prior to the
termination of Complainant’s employment during probation (incident (1)(h)). The AJ found
that the incidents described (a) through (g) were neither severe nor frequent and did not alter
the terms and conditions of Complainant’s employment. The AJ noted that Complainant’s

1 Portions of the record indicate this incident occurred on June 28, 2010.
2 The record indicates that Complainant was hired into a career intern program with a two-year
probationary period, but one that included a general schedule (GS) career ladder progression
from GS-9 to GS-11 after one year conditioned upon Complainant’s achieving an acceptable
level of performance after one year.
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complaint described only a few isolated incidents that occurred over a 16-month period, which
she found was not sufficient to rise to the level of harassment.

The AJ observed that most of the incidents involved Complainant’s disagreement with the
Agency’s assessment of Complainant’s performance deficiencies. For example, the AJ found
that Complainant’s supervisors questioned Complainant’s ability to speak effectively to others
as well as his written communications. When Complainant’s performance was deemed
unacceptable, Complainant’s supervisor, M1, advised Complainant that he would face
termination and that he was to return the Agency’s property in his possession. (claims (1)(b),
(1)(c), and (1)(d)).

The AJ further noted that in connection with discussion of Complainant’s performance
deficiencies, Complainant was advised that he would be denied a grade level increase, and later
M2, Complainant’s Manager in November 2010, removed a number of cases from
Complainant’s inventory based upon Complainant’s plans for annual leave and the pending
holiday season. (claims (1)(e) and (1)(f)). The AJ found that Complainant’s performance
difficulties during his probation were well documented in the record, and that the comments
regarding the use of American English pertained to Complainant’s written work which
Complainant’s supervisors appropriately expected to be at a level consistent with his job
description and grade level. The AJ found more than one supervisor observed that
Complainant struggled with his written work product including grammatical and typographical
errors.

The AJ further found that the stray remark by Complainant’s co-worker (claim (1)(g)) as well
as M1’s remark regarding Complainant’s use of his credentials (claim (1)(a)), were not
remarks that were either severe or frequent and did not rise to the level of harassment. The AJ
found that viewing Complainant’s overall harassment claim, the handful of isolated incidents
described in his complaint did not establish that Complainant was subjected to discriminatory
harassment.

Additionally, the AJ considered Complainant’s claim that two co-workers (E2 and E3) were
not subjected to similar harassment. The AJ found the undisputed evidence did not show that
E2 or E3 experienced similar performance issues. E2, the AJ observed, is also not outside
Complainant’s protected racial group because E2 is also Black. With respect to reprisal, the
AJ found that most of the incidents of Complainant’s alleged harassment (claims (1)(a) though
(1)(e)), occurred prior to Complainant’s initial EEO contact in June 2010. The AJ noted that
with respect to (1)(f), Complainant failed to establish the necessary nexus between his EEO
activity and M2’s decision to remove four cases from Complainant’s inventory. Moreover, the
AJ noted, the undisputed evidence supported M2’s explanation that she reassigned the cases in
November 2010, in light of Complainant’s leave schedule and the upcoming holidays.
Additionally, the AJ found no evidence that E1 was aware of Complainant’s prior EEO activity
at the time he commented on Complainant’s plans to visit Nigeria.

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Denied Grade Level Increase and Termination

The AJ also considered Complainant’s claims regarding two discrete incidents under a theory
of disparate treatment. The AJ found that with respect to claims (1)(e) (grade level increase)
and (1)(h) (termination during probation), Complainant failed to establish a prima facie case of
race, national origin, or disability discrimination because he failed to identify any similarly
situated employees not in his protected groups who were treated better than he was treated.
The AJ found that Complainant sought to compare himself to E2. As previously noted, the AJ
found no evidence to support a finding that E2 had similar issues with his performance, and
accordingly, E2 and Complainant were not similarly situated. The undisputed evidence of
Complainant’s performance, the AJ noted, was documented as “well below average” by
Complainant’s on-the-job instructor (OJI) and Complainant was counseled about his
performance on multiple occasions prior to his termination in January 2011.

The AJ further found that Complainant could not establish a prima facie case of reprisal
discrimination with respect to his termination (1)(h) because he failed to show the necessary
connection between his EEO activity in June 2010, and his termination in January 2011.
Significantly, rather than terminate Complainant, the AJ found, Complainant was informed he
would be given another chance to improve his performance following his June 2010 EEO
contact.

Reasonable Accommodation (claim (2))

The AJ found there was no denial of a reasonable accommodation because Complainant was
not “qualified” for his position with or without a reasonable accommodation.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
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
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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. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf.

29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
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).
With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However,
where the harassment does not result in a tangible employment action the agency can raise an
affirmative defense, which is subject to proof by a preponderance of the evidence, by
demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any
harassing behavior; and (2) that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See
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Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This
defense is not available when the harassment results in a tangible employment action (e.g., a
discharge, demotion, or undesirable reassignment) being taken against the employee. In the
case of co-worker harassment, an agency is responsible for acts of harassment in the workplace
where the agency (or its agents) knew or should have known of the conduct, unless it can show
that it took immediate and appropriate corrective action.

Id.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability";
(2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination.

Id.

In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are undisputed and resolving all reasonable inferences in Complainant’s favor,
we find Complainant did not present sufficient evidence from which a trier of fact could find
that he was subjected to discrimination on any basis as alleged.

Harassment

We find that Complainant failed to show that he was subjected to a discriminatory hostile work
environment. With respect to incidents (1)(a) - (1)(f) and (1)(h), we find Complainant failed to
present a prima facie case of discrimination because he failed to establish the necessary nexus
between his protected groups and the Agency’s actions. We find that Complainant presented
no evidence the Agency’s actions were motivated by his race, national origin, or disability.
We note that the only incident of harassment remotely related to any protected basis is the
incident described in (1)(g), which incident involved a coworker, E1, rather than any member
of management. We note further that the Agency took immediate, appropriate corrective
action after Complainant reported the incident. The record shows that no further incidents
with E1 occurred thereafter.

Additionally, we find the Agency presented legitimate, nondiscriminatory reasons for its
actions that Complainant did not show were false or a pretext to mask discrimination. We
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find, for example, that the Agency presented evidence that Complainant’s supervisors were
critical of his performance with respect to his written work. We find it reasonable for
Complainant’s manager, M1, to question Complainant regarding his ability to communicate
and successfully perform the essential functions of his position when typographical and
grammatical errors in his written work were apparent. When Complainant’s work continued to
show that Complainant had communication issues and therefore, performance difficulties, we
find the Agency properly took steps to address Complainant’s failing performance. Such steps
reasonably including providing notice to Complainant that he would be terminated and
appropriately advising Complainant to return the government property in his possession if he
planned to resign.

We consider the Agency’s explanation for reassignment of several of Complainant’s cases from
his inventory by Complainant’s supervisor, M2, in light of Complainant’s plans for annual
leave and the approaching holiday season. We find Complainant did not present any evidence
that discrimination played any role in M2’s decision. We find M2’s explanation that the age of
the reassigned cases, as well as Complainant’s plans to be away from his work for an extended
period of time, motivated M2 to reallocate the work as she deemed appropriate under the
circumstances. We find no evidence that M2’s reasons were false or a pretext to mask
discrimination.

We further concur with the AJ that the undisputed evidence shows that most of claim (1)
(incidents (1)(a) through (1)(e)) occurred prior to Complainant’s EEO contact.

Denied Grade Level Increase and Termination

With respect to Complainant’s termination and denied grade level increase, we find, as did the
AJ, that Complainant did not identify other employees who were also performing at less than
successful levels who were treated better than Complainant was treated. We find, as did the
AJ, that Complainant’s performance was assessed by multiple members of management,
including M1, M2, and other Agency officials, who found upon review that Complainant’s
work did not meet the minimum performance standards for Complainant’s position. For
example, M2 noted in her mid-year assessment (signed by M2 on November 29, 2010) of
Complainant’s performance that Complainant failed to demonstrate adequate knowledge of tax
law and financial accounting principles. We find the record void of any objective evidence that
M2’s assessment was untrue. We decline to disturb the AJ’s finding that Complainant failed
to present evidence to rebut the Agency’s stated reasons for removing Complainant from his
position, nor any evidence that other employees with similar performance issues were not also
removed during probation.

Reasonable Accommodation

With respect to Complainant’s requests for accommodations for his disability, (claim (2)), we
find that Complainant does not dispute that he was provided with accommodations at least by
September 29, 2010, and, as the AJ found, that Complainant does not maintain that the
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accommodations were ineffective. We find, as did the AJ, that Complainant did not present
evidence that he was capable of performing the essential functions of his position either with or
without an accommodation. In particular, we note that Complainant’s mid-year assessment, in
which Complainant was rated as “fails” in numerous performance elements, covered the
months in 2010, during which Complainant had received the accommodations he requested
including noise cancelling headphones and a quiet cubicle location. We find the evidence
shows that Complainant’s performance deficiencies continued beyond the time that
Complainant received the accommodations he requested. We find therefore, that Complainant
failed to present a prima facie case of discrimination based on disability because Complainant
failed to show that he was a qualified individual with a disability. We do not determine in this
decision if Complainant was disabled, only that he was not “qualified” for the position he held.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

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
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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

Date
July 25, 2014