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

Equal Employment Opportunity Commission

Mar 26, 2013

0120121176 (E.E.O.C. Mar. 26, 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. 0120121176

Hearing No. 410-2011-00315X

Agency No. IRS-10-0804-F

DECISION

Complainant filed an appeal from an Agency’s final order dated December 13, 2011, finding
no discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated October 29, 2010, Complainant, a former employee at the Agency,
alleged discrimination based on age (over 40) and national origin (Arab) when:

(1) On March 1, 2010, management began to write him up for minute and picky issues;

(2) On April 20, 2010, management accused him of spying, took his camera, and had
security escort him out of the building;

(3) On April 30, 2010, he was terminated during his probationary period from his
position as Customer Service Representative, GS-0962-05, with the Agency; and

(4) On May 1, 2010, he was visited at his home and questioned by the Inspector
General for Tax Administration (IGTA).

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At the conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On December 5, 2011, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the Agency in its final order.

ANALYSIS AND FINDINGS

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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Despite
Complainant’s contentions on appeal, we do not find any improper conduct on the part of the
AJ during hearing process.

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency had articulated legitimate,
nondiscriminatory reasons for the alleged incidents. With regard to claim (1), Complainant’s
supervisor indicated that it was her responsibility to monitor and assess employees’
performance, including Complainant’s performance. With regard to claim (2), the supervisor
indicated that an identified employee informed her that Complainant was taking pictures in the
work area. Complainant claimed that he took a photograph of the blank computer screen to
prove its malfunctions. The supervisor stated that once she confirmed with Complainant that
he took pictures without asking permission, she reported the incident to her manager. She did
not accuse Complainant of spying. The AJ stated that during the relevant time period at issue,
management had a concern that those pictures included sensitive taxpayer information from his
computer. Thus, indicated the AJ, management called security and questioned Complainant
and checked his camera which was disposable, and confiscated the camera at that time. When
security advised Complainant that it was against federal regulations to have a camera on the
premises, he responded that he had taken the camera past the security guards, that he could do
anything he wanted to with it, and stated, “what are you going to do about it?” Because
Complainant became irate and behaved in an inappropriate manner, security escorted
Complainant out of the workplace and to his car and asked him to turn in his parking pass and
his security badge. The AJ indicated that management’s statement that they felt threatened by
Complainant during the relevant time period was credible and that Complainant’s own behavior
during the course of the hearing indicated Complainant had a hostile and abrasive attitude.

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With regard to claim (3), the supervisor stated that she decided to terminate Complainant
during his probationary period due to his poor performance, his failure to be certified, and the
foregoing incident. Specifically, the supervisor indicated that Complainant was given on-the-
job certification training beginning on February 17, 2010, but he failed to meet the
requirements for receiving certification in the position with his consistently high failure rate
and providing incorrect information to taxpayers. The AJ stated that Complainant was
previously given several counseling/discussions in regards to the requirements for the position
and his ability to be certified. Despite management’s attempts to help him to improve his
performance, Complainant failed to meet the requirements for certification on either refund
calls or balance due calls.

With regard to claim (4), during the relevant time period at issue, IGTA did go out to
Complainant’s home and spoke to his wife. Based on this meeting, no further charges were
brought against Complainant in regard to the bringing the camera to the workplace.

The AJ stated and we agree that Complainant failed to establish that he was subjected to any
actions by the Agency that would rise to a level objectively as being harassment. We find that
Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. The AJ stated that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent are supported by
substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by
substantial evidence.

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
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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
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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

March 26, 2013
Date