Daniel L. Chambers, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionFeb 27, 2009
0120064530 (E.E.O.C. Feb. 27, 2009)

0120064530

02-27-2009

Daniel L. Chambers, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Daniel L. Chambers,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 0120064530 (formerly 01A64530)

Hearing No. 340-2005-00366X

Agency No. 042389

DECISION

On August 1, 2006, complainant filed an appeal from the agency's June 29,

2006, final decision 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. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission REVERSES the agency's final decision.

At the time of events giving rise to this complaint, complainant

worked as a Tax Examining Technician, GS-0592-06, Small Business/Self

Employed Compliance Field Operations, in Laguna Niguel, California.

On May 12, 2004, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of national origin1, disability

(hearing impaired), and in reprisal for prior protected EEO activity

[arising under the Rehabilitation Act]2 when:

(1) on March 15, 2004, his request for annual leave was disapproved and

he was charged as absent without leave (AWOL);

(2) on March 16, 2004, his supervisor issued a proposal for a 3-day

suspension; and

(3) he was suspended from duty from April 14-16, 2004.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing but subsequently withdrew his request. Consequently,

the agency issued a final agency decision (FAD) pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that he was subjected to discrimination as alleged.

The FAD found that complainant is an individual with a disability because

his impairment substantially limits the major life activity of hearing.

The FAD further found that all responsible management officials were

aware of his hearing impairment. The FAD also assumed that complainant

is a qualified individual with a disability. The FAD found however,

that complainant failed to establish a prima facie case of disability

discrimination because there was no evidence that employees outside

his protected group who engaged in similar behavior were treated

more favorably. Addressing national origin, the FAD noted that even

assuming deaf culture is a national origin complainant cannot establish a

prima facie case because he provided no evidence that employees outside

his protected group who engaged in similar behavior were treated more

favorably. The FAD next addressed the basis of reprisal and found that

complainant had engaged in prior protected EEO activity. The FAD found

that the Group Manager and Territory Manager were aware of complainant's

prior activity, and that the time frame between the protected activity and

the adverse treatment was such that a retaliatory motive may be inferred.

The FAD then found that management articulated legitimate,

nondiscriminatory reasons for its actions. As to issue (1), the Group

Manager stated she did not grant complainant's request for leave on March

15, 2004 because a meeting with the Territory Manager in which complainant

was to receive a letter of proposed suspension had already been scheduled

for that time, and the services of an interpreter had already been

arranged. She stated that when he failed to appear for the meeting,

she charged complainant with AWOL. The FAD noted that in an attempt to

establish pretext, complainant stated that the Group Manager believes he

is a trouble maker because he files EEO complaints and management does

not listen to him because of his disability. The FAD concluded that

there was no evidence of a discriminatory motive concerning issue (1).

As to issues (2) and (3), the FAD found that management had provided

specific reasons for its actions. Specifically, complainant had engaged

in unprofessional behavior on six occasions between September 16, 2003

and January 14, 2004. The FAD indicated that complainant believes his

deafness was the reason for the suspension in that the Territory Manager

does not understand where he is coming from, and complainant believes

that hearing employees can get their points across while deaf employees

cannot because they have to rely on an interpreter to relay information

that sometimes gets lost in the translation. The FAD found no evidence

of pretext as to issues (2) or (3).

On appeal, complainant raises no new arguments, but has submitted a series

of emails between management and himself as well as some photographs

and other documentation. The agency requests that we affirm the FAD.

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 EEOC Management

Directive 110, 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").

Issues (2) and (3): Proposal to Suspend and Suspension

We begin our analysis by addressing the basis of reprisal. The statutory

retaliation clauses prohibit any adverse treatment that is based on

a retaliatory motive and is reasonably likely to deter the charging

party or others from engaging in protected activity. Petty slights

and trivial annoyances are not actionable, as they are not likely to

deter protected activity. More significant retaliatory treatment,

however, can be challenged regardless of the level of harm. As the

Ninth Circuit has stated, the degree of harm suffered by the individual

"goes to the issue of damages, not liability." Hashimoto v. Dalton,

118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of Navy,

659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory

violation and appropriate statutory remedy are conceptually distinct.

An illegal act of discrimination - whether based on race or some other

factor such as a motive of retaliation - is a wrong in itself under

Title VII, regardless of whether that wrong would warrant an award of

[damages]"). The retaliation provisions set no qualifiers on the term

"to discriminate," and therefore prohibit any discrimination that is

reasonably likely to deter protected activity. A violation will be found

if an employer retaliates against a worker for engaging in protected

activity through threats, harassment in or out of the workplace, or any

other adverse treatment that is reasonably likely to deter protected

activity by that individual or other employees. EEOC Compliance Manual

on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).

Where there is direct evidence of discrimination, there is no longer

the need to prove a prima facie case or facts from which an inference of

discrimination can be drawn. TWA v. Thurston, 469 U.S. 111, 121 (1985).

The McDonnell Douglas test is inapplicable where complainant presents

direct evidence of discrimination. Direct evidence is an action or

statement of an employer which reflects a discriminatory or retaliatory

attitude, and which correlates to the challenged act. See Caban-Wheeler

v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990). Once the trier of

fact has accepted the direct evidence, liability is established.

EEOC Policy Guidance on Recent Developments in Disparate Treatment

Theory, No. 915.002, July 14, 1992, Section III. In this case, there is

undisputed evidence that actions/statements were made by management which

reflect a retaliatory attitude, and which correlate to the challenged

acts. Specifically, management listed the following six "specifications"

(i.e. reasons) for why they were proposing suspension for complainant's

"unprofessional" conduct:

(1) You brought a complaint against your former manager [hereinafter

"FM"] in June 2003, alleging that she had intimidated, threatened and

harassed you. You alleged that she followed you around the building and

appeared in your work area. After an investigation it was determined

that the allegations were unfounded.

(2) On September 16, 2003, you delivered a letter to the DEEOAC

[Diversity and Equal Opportunity Advisory Committee] addressed to the

chair and vice chair in an attempt to have a member removed from the

DEEOAC board. You stated in the letter that, "It can be lead to influence

to worker for violence the workplace and hate crime for against the

disability employee [sic]." You made unfounded accusations against

[FM] for "depraved indifferences for against a disability employee

[sic]." However, there is no evidence of any wrong doing by the

managers. Your allegations caused dissension and discord within the

workplace.

(3) On September 18, 2003, you filed a TIGTA [Treasury Inspector

General for Tax Administration] compliant [sic] against a coworker

[hereinafter "CW"] from another work unit for harassing you in the

workplace by stalking, teasing and taunting you. After an investigation

it was determined that the allegations were unfounded.

(4) On September 18, 2003, you called [CW] "curmudgeonly and stupid

person." In the same email, you also stated "It can be escalate to

hate crime and violence the workplace for against me." This is another

accusation against the same coworker addressed in specification 3

above.3

(5) On December 12, 2003, you sent an email to your manager making

unsubstantiated and unprofessional comments. You stated that: A) "Most

smokers are hostile towards me because they share for information with

others." B) "Did you know [FM] have historic of mentally problems &

bullying for discriminated with [an employee], the wheelchair and

[another employee], the deaf person? [sic]."4

(6) On January 14, 2004, you threatened [CW] by sending a letter

that implied that she would be terminated - This was the same coworker

addressed in specifications 3 and 4 above."5

The letter of proposed suspension then stated: "The content of your

letters, emails and complaints were found to be unsubstantiated and

were inappropriate as to your hostile tone toward your coworkers.

Such conduct seriously impairs the efficiency of the Service and will

not be tolerated in the work place. Such conduct undermines management's

confidence in your ability to perform the duties required of your position

in an effective and professional manner. It creates a distraction and

unstable work environment for all employees."

The Commission finds that the agency's decision to suspend complainant

was motivated by retaliatory animus based on complainant's protected

EEO activity. The suspension letter specifically refers to several

instances of complainant's protected EEO activity, such as his filing of a

complaint with DEEOAC on September 16, 2003, and his opposition to alleged

disability-based discrimination by complaining to TIGTA on September 18,

2003 about harassment by CW which "violated of the Civil Rights [sic]".

Title VII prohibits employers from "discriminat[ing] against any of

[its] employees ... because [such employees have] opposed any practice

made an unlawful employment practice by this subchapter, or because he

has made a charge ... or participated in any manner in an investigation,

proceeding or hearing under this subchapter." 42 U.S.C. � 2000e-3(a).

This protection applies if an individual explicitly or implicitly

communicates to his or her employer or other covered entity a belief

that its activity constitutes a form of employment discrimination

that is covered by any of the statutes enforced by the EEOC. In this

case, complainant's act of complaining to management about alleged

harassment by a co-worker constitutes protected EEO activity, because

in so doing, he was clearly opposing what he believed, in good faith6,

to be discriminatory treatment or practices.

In this case, the suspension letter specifically cites to complainant's

protected EEO activity as forming the basis for such discipline.

Therefore, the Commission finds that complainant has provided direct

evidence that the proposed suspension and suspension were motivated

by retaliatory animus.7 It is clear that subjecting an employee to

discipline for filing complaints (even if subsequently found to be

unsubstantiated and which were deemed by management to be "inappropriate"

in tone) is reasonably likely to deter protected activity by that

individual or other employees.

Once a complainant proves that discrimination or retaliation was a

motivating factor, the burden of proof shifts to the employer to establish

that it would have taken the same action absent the discrimination or

retaliatory animus. See EEOC Policy Guidance, supra. Here, the agency

has not met its burden. In fact, in this instance, it is clear that

complainant's protected EEO activity was the primary (if not sole)

reason the suspension was issued. Accordingly, after a careful review

of this record, we REVERSE the FAD and direct the agency to comply with

the Order below.

ORDER

Within sixty (60) days of the date this decision becomes final, the

agency shall:

(1) Rescind complainant's AWOL for leaving work on March 15, 2004.

(2) Restore all pay and benefits lost while complainant was in AWOL

status and serving his suspension.

(3) Expunge all references to the suspension, proposed suspension,

and complainant's failure to attend the March 15, 2004 meeting, in

complainant's personnel records.

(4) Provide a minimum of eight (8) hours of EEO training, with special

emphasis on the area of reprisal, for all involved management officials

still employed with the agency.

(5) Consider taking appropriate disciplinary action against the

responsible management officials. The Commission does not consider

training to be disciplinary action. The agency shall report its decision

to the compliance officer. If the agency decides to take disciplinary

action, it shall identify the action taken. If the agency decides

not to take disciplinary action, it shall set forth the reason(s)

for its decision not to impose discipline. If any of the responsible

management officials have left the agency's employ, the agency shall

furnish documentation of their departure date(s).

(6) The issue of compensatory damages is REMANDED to the agency. On

remand, the agency shall conduct a supplemental investigation on

compensatory damages, including providing the complainant an opportunity

to submit evidence of pecuniary and non-pecuniary damages. For guidance

on what evidence is necessary to prove pecuniary and non-pecuniary

damages, the parties are directed to EEOC Enforcement Guidance:

Compensatory and Punitive Damages Available Under � 102 of the Civil

Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). The agency

shall complete the investigation and issue a final decision determining

the appropriate amount of damages within 150 calendar days after this

decision becomes final. The final decision shall include appropriate

appeal rights.

POSTING ORDER (G0900)

The agency is ordered to post at its Small Business/Self Employed

Compliance Field Operations office, Laguna Niguel, California, copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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

February 27, 2009

__________________

Date

1 Complainant identifies his national origin as "deaf culture."

2 In his formal complaint, complainant also alleged sexual orientation

as a basis. His complaint alleging sexual orientation discrimination

was processed under Agency No. TD 04-2021 N. The agency issued a

procedural dismissal on or about March 22, 2005. Complainant appealed

that decision to the Commission and we affirmed the agency's decision in

Chambers v. Department of Treasury, EEOC Appeal No. 01A53572 (September

6, 2005).

3 In this letter, complainant also stated "I feel that violated of the

Civil Rights because we are same handicapped [sic]."

4 In his formal complaint, complainant describes this as "participation

in the EEO process last December 2003."

5 In this letter, complainant included an excerpt from the "IRS

Restructuring and Reform Act of 1998" which states, in part, that an

employee would be charged with misconduct and terminated if found to

have violated another employee's civil rights under Title VII or the

Rehabilitation Act.

6 While the agency claims that complainant's allegations were unfounded

because no witnesses provided corroborating evidence, we find that a lack

of witness corroboration is not tantamount to proof that complainant

lacked a reasonable, good faith belief that he had been discriminated

against. We also recognize that employees and managers have alleged

that complainant has also perpetrated harassment and other inappropriate

behaviors against them. Even assuming such past incidents occurred the

Commission is not persuaded that this shows that complainant lacked a

reasonable, good faith belief that he had been subjected to discrimination

when he initiated the complaints which management cited in the suspension

letter.

7 We note that we also find retaliation as to issue (1) because of the

specific context in which the leave in question was denied: there is

no dispute that complainant requested annual leave in order to avoid

attending a meeting in which management planned to issue him the letter

of proposed suspension. As such, we find that the denial of leave and

AWOL charge are inextricably linked to the other challenged actions.

Additionally, we note that in light of our finding that the challenged

actions were retaliatory, we need not reach the question of whether they

were also motivated by discriminatory animus on the remaining alleged

bases, as complainant would not be entitled to any additional remedial

action.

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0120064530

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120064530