01973497
03-17-1999
David Sity Appellant, v. Robert E. Rubin Secretary, Department of the Treasury, Internal Revenue Service Agency.
David Sity v. Department of the Treasury
01973497
March 17, 1999
David Sity )
Appellant, )
) Appeal No. 01973497
v. ) Agency No. 96-4094
) Hearing No. 260-96-8139X
Robert E. Rubin )
Secretary, )
Department of the Treasury, )
Internal Revenue Service )
Agency. )
______________________________)
DECISION
On March 20, 1997, David Sity (appellant) timely appealed the final
decision of the Internal Revenue Service (agency), which was issued
on March 12, 1997, concluding he had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleges that he was discriminated against on the basis of age
(age 42; DOB 5/20/53), and reprisal (prior EEO activity) in the ratings he
received in his performance evaluation dated February 7, 1996. The appeal
is accepted by the Commission in accordance with EEOC Order No. 960.001.
The undisputed record reflects that during the relevant time period,
appellant was employed as an Internal Revenue Service Agent, GS-11.
In May, 1995, appellant's first line supervisor (S1) (age 54; DOB unknown)
issued a notice to appellant of unacceptable behavior regarding the
manner in which he expressed disagreement with S1's edits to appellant's
technique guide in the exotic dancer industry which was known as the
Market Segment Specialization Program (MSSP). S1 informed appellant that
the following actions constituted insubordination, and repetition could
lead to disciplinary action: (1) personal attacks on S1's integrity and
competence; (2) appellant's expression of disagreement by raising his
voice and pounding his fist on S1's desk; (3) violating the chain of
command by faxing the regional analyst appellant's four-page response
memorandum to S1's edits without discussing it first with S1; and
(4) violating the chain of command by faxing the regional analyst a
message, without S1's knowledge, essentially stating that through S1's
editing, appellant was prevented from completing a productive product.
S1 also advised appellant that his actions had a negative impact on
his performance evaluation under the critical elements of "Customer
Relations" (job element number 7) which begins "Conducts contacts and
discussions both inside and outside the Service in a firm, businesslike,
and professional manner," and "Written Product" (job element number 6)
which begins: "Follows procedures and guidelines." Appellant does not
dispute the factual rendition by S1 in his memorandum, but does dispute
the fact that such conduct warranted disciplinary action. Throughout the
MSSP incident, appellant asserted that it was improper for S1 to have
submitted the edited version of his technique guide without notifying
the reader of who made the edits.
On February 7, 1996, appellant met with S1 and a union representative
(UR) to discuss appellant's performance review. Appellant affirmed
that, during the meeting, S1 stated that he ranked appellant lower on
two specific elements of the performance review because of their prior
disagreement regarding the edits to the MSSP. Contrary to appellant's
account, S1 affirmed that he explicitly informed appellant at the February
7, 1996 meeting that he intentionally did not factor in the MSSP incident
in his review since the conduct was never repeated and, on a personal
level, he wanted to put the incident behind them. The record further
reflects that the UR, although present during this discussion, could
not remember any specific references to the MSSP incident.
On February 12, 1996, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
The AJ issued a recommended decision, without a hearing, pursuant to
29 C.F.R. �1614.109(e)(3), finding no discrimination. In that decision
the AJ held that appellant failed to present a prima facie case of age
or reprisal discrimination. The AJ held that a prima facie case of
age discrimination was not established because there was no evidence
showing appellant was subjected to less favorable treatment from any
similarly situated individual, outside appellant's protected class.
The AJ also held that a prima facie case of reprisal discrimination
was not established because appellant has presented no evidence which
connects appellant's February 1996 performance evaluation with any prior
EEO complaint.
The AJ also found that the agency articulated a legitimate,
non-discriminatory reason for the rating appellant received on his
February, 1996 appraisal. S1 affirmed that appellant was rated according
to his performance. S1 further affirmed that in rating appellant, he
considered the fact that appellant had not developed a significant number
of cases with complex audit trails, had not uncovered a significant number
of new issues, had a relatively high no change rate and had not developed
a single fraud referral. He further affirmed that appellant's work in his
exotic dancer cases was acknowledged in the ratings of "4" given to job
elements 5, 6 and 7. However, S1 could not justify giving appellant an
"Outstanding" rating since appellant went into too much detail in his
written products, and did not consider the needs of his audience.
In addition, the AJ noted that in the most recent evaluations S1 prepared
for the nine agents in his group, higher ratings were predominantly given
to agents who were older than appellant, and whose record indicated work
on more complex returns.
Lastly, the AJ determined that appellant failed to prove that the agency's
rationale was not worthy of credence or that the agency's employment
action was motivated by age or reprisal discrimination. Specifically,
other than bold allegations of discrimination, the appellant has not
proffered any specific probative evidence indicating that S1's rationale
for his rating of appellant was pretextual, or that age and/or reprisal
was a factor in the performance rating.
On March 12, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981). The Commission concludes that, in all material respects, the AJ
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws. Based on the
evidence of record, the Commission discerns no basis to disturb the AJ's
findings of no discrimination. As appellant has offered no additional
evidence in support of his claim on appeal, we discern no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
March 17, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations