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

Equal Employment Opportunity Commission

Aug 20, 2013

0120130762 (E.E.O.C. Aug. 20, 2013)

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. 0120130762

Agency No. IRS-08-0170-F

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated October 27,
2012, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

In his complaint, Complainant alleged discrimination based on age (over 40), race (Caucasian),
and in reprisal for prior EEO activity when:

(1) On November 5, 2007, he was issued a performance appraisal for the period ending
October 31, 2007, that lowered one of his critical job elements and contained an
inaccurate narrative;
(2) On November 7, 2007, his manager charged him 30 minutes of Absence Without
Official Leave (AWOL) for returning late from a break; and
(3) On November 23, 2007, he became aware that his enter-on-duty (EOD) date was
changed from February 24, 1992, to January 14, 2004.

The record indicates that after completion of the investigation of the complaint, Complainant
requested a hearing but later withdrew the request. The Agency then issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which
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Complainant failed to rebut. On appeal, Complainant raises matters that are not relevant to the
instant complaint.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
Customer Service Representative, GS-962-8, in the Agency’s Kansas City Accounts
Management Office. The record indicates that Complainant subsequently retired on July 18,
2008, from his employment at the Agency.1

With regard to claim (1), Complainant’s former manager indicated that on August 19, 2007,
she provided Complainant with a departure evaluation for the period of November 1, 2006,
through August 19, 2007, i.e., his performance during her tenure as his manager.
Complainant claimed that on November 5, 2007, he received the appraisal for the period
covered from November 1, 2006, to October 31, 2007, with average score of 3.4 (4 for
exceeds, 3 for meets) with overall rating of “Exceeds Fully Successful.” It appears that
Complainant’s then manager mistakenly gave the score of 3 for his Technical
Knowledge/Research performance aspect of Customer Satisfaction – Knowledge critical job
element although the manager indicated in his narrative statement that he “exceeded” on this
performance aspect. The record indicates that on December 26, 2007, the manager
subsequently corrected the mistake and issued Complainant the corrected appraisal with the
score of 4 for the subject performance aspect, resulting in an average score of 3.6 with the
same overall rating of “Exceeds Fully Successful.”

Complainant also claimed that he should have received scores of 4 for a few other categories of
the job elements. The manager stated that he adopted the former manager’s departure
evaluation for executing the rating at issue. The former manager indicated that in the

1 The record indicates that on June 27, 2009, Complainant filed an EEO complaint, Agency
No. IRS-09-0727, alleging a constructive discharge. On April 20, 2010, the Agency issued its
final decision finding no constructive discharge, and Complainant filed an appeal to the Merit
Systems Protection Board, Docket No. CH-0752-10-0618-I-1, on May 18, 2010.
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departure evaluation, she based the ratings on consistency in correct actions and defects
performed and complexity of work and actions performed and observed. The manager stated
that he adopted the former manager’s departure evaluation for executing the rating at issue.
Upon review, we find no evidence in the record to show that Complainant’s performance
during the relevant time period entitled him to receive “Outstanding” rating or his “Exceeds
Fully Successful” rating at issue was discriminatory.

With regard to claim (2), Complainant claimed that he was issued the AWOL for returning late
from a break on October 29, 2007, during training. Complainant acknowledged that this
charge was later removed. Complainant’s manager stated that during the relevant time period
at issue, she received an electronic message from one of the instructors of training indicating
that Complainant was late when he returned from a break. The manager indicated that
pursuant to the Agency’s policy, she charged Complainant with the AWOL. Complainant does
not deny that he was late returning to his training.

With regard to claim (3), Complainant claimed that on August 24, 2007, while he was talking
about his vacation/leave request, his manager told him that his EOD date was January 14,
2004, and not February 24, 1992. Complainant also acknowledged that subsequently, on
November 24, 2007, management corrected his EOD date to reflect February 24, 1992.
Management indicated that the change to Complainant’s EOD date might have occurred due to
his break-in-service in 2004. Management also stated that regardless of Complainant’s
corrected EOD date, his annual leave request (for approvals/disapprovals) remained the same.
Complainant does not dispute this.

With regard to his harassment claim, we find that Complainant failed to establish the severity
of the conduct in question or that it was related to any protected basis of discrimination.
Furthermore, we find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances regarding the alleged incidents. Based
on the foregoing, we find that Complainant failed to show that the Agency’s actions were
motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.2

2 In its final decision, the Agency also dismissed claim (3) due to untimely EEO Counselor
contact and/or as moot. However, we note that since the complaint has been investigated and
the Agency also found no discrimination regarding the matter which we affirm in this decision,
we need not address its dismissal.
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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
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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 20, 2013
Date