0120101838
06-27-2012
Francis M. Pfost, Jr., Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Francis M. Pfost, Jr.,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120101838
Hearing No. 550-2009-00158X
Agency No. IRS-08-0648F
DECISION
On March 31, 2010, Complainant filed an appeal from the Agency's February 19, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Revenue Officer for the Agency's Small Business/Self Employed Division in Salinas, California. Complainant began working for the Agency on October 1, 2007. During most of the relevant time, the Supervisory Revenue Officer (S1) was Complainant's immediate supervisor. However, from May 19, 2008, through June 11, 2008, Person A was the Acting Group Manager while S1 was on leave. During the relevant time, Complainant's second-line manager was S2. From December 2007 through March 2008, Complainant's on the-job instructor was OJI 1. In March 2008, OJI 2 became Complainant's on-the-job instructor
Complainant filed an EEO complaint dated August 8, 2008, alleging that the Agency discriminated against him on the bases of perceived disability and age (60) when on June 26, 2008, management: (1) revoked his driving privileges; and (2) forced him to resign from his probationary position.
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 timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on February 1, 2010. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant alleges that the investigator was biased and failed to conduct an appropriate investigation. Specifically, Complainant claims that the investigator allowed S1 to view his declaration and the declarations of other witnesses prior to securing S1's declaration. Finally, Complainant argues that the AJ erred in refusing to grant a discovery period. Complainant claims the AJ's failure to grant discovery showed that she was biased against him.
In response to Complainant's appeal, the Agency states that even if S1 was allowed to view Complainant's declaration or the declaration of others, this does not change the fact that Complainant failed to show that there are any material facts in dispute nor any credibility determinations that need to be made. The Agency also notes that Complainant had an opportunity to submit any additional information he wanted to at the time he responded to the AJ's Notice of Intent to Issue a Decision Without a Hearing; however, he failed to do so. Finally, the Agency notes Complainant has presented no evidence supporting his discrimination claims.
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 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").
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing. We note that Complainant is not claiming he was denied a reasonable accommodation. Moreover, we find the record in the present case was fully developed. We find no error in the AJ's handling of discovery and we further find that Complainant has not indicated that what he sought to discover, even if true, would lead to a material fact being at issue. Under these circumstances, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. Moreover, despite Complainant's contentions we find no evidence that the AJ or the Agency investigator was biased.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Upon review, the Commission finds that assuming arguendo, that Complainant was able to establish a prima facie case of discrimination, the Agency articulated legitimate, non-discriminatory reasons for its actions. In the present case, the Agency stated that Complainant was terminated during his probationary period because of his substandard performance. The record reveals that OJI 1 reviewed Complainant's work and provided feedback on his performance. Among other things, OJI 1 informed Complainant of his errors on several assignments and told him he failed to manage his time effectively.
The record also shows that in May 2008, the Acting Group Manager conducted his own assessment of Complainant's case assignments. The Acting Group Manager noted several deficiencies in Complainant's work. The record contains a May 28, 2008 written review of Complainant's work, in which the Acting Group Manager noted that Complainant is "struggling in the majority of aspects required to do this job." The Acting Group Manager informed Complainant that "your opening case analysis is missing several key item[s]; you are not addressing FPLP indicators, missing the archived history, not consistently addressing whether or not final demand has been given or third party notification." In his review, the Acting Group Manager also noted that of the 10 cases he reviewed, Complainant had missed initial contact dates on seven. The Acting Group Manager also stated, "Your plans of action are nonexistent or very weak;" "You rarely document a follow up date;" and, "You are not addressing and/or monitoring compliance." Thereafter, on June 26, 2008, the Agency informed Complainant that the process would be started to remove Complainant from employment due to his continued substandard performance.1 Thus, we find the Agency articulated legitimate, non-discriminatory reasons for deciding to remove Complainant, his continued substandard performance.
With regard to the revocation of his driving privileges, the record reveals on June 19, 2008, OJI 2 accompanied Complainant during a day of appointments with taxpayers in the field. As part of his job, Complainant was required to drive a government owned vehicle to and from the appointments with the taxpayers. Complainant stated that near the end of a long, hot day of field visits, he felt drowsy and his eyelids were fluttering. OJI 2 became alarmed when she observed Complainant appearing to fall asleep while driving and she asked to take the driving duties from him; however, Complainant refused her request. OJI 2 reported the incident to S1.
The following day, on June 20, 2008, S1 had a meeting with Complainant and said that at one point during the meeting he could not avoid closing his eyes and that S1 then shouted for Complainant to wake up. Complainant stated that later in that day, he apologized to S1 and stated that he had previously suffered a heart attack in 2000, and took medication that could cause drowsiness.
On June 26, 2008, the Agency notified Complainant that for the remainder of his time working at the Agency until his resignation became effective he would not be allowed to drive a government vehicle because of the health and safety concerns resulting from the report of Complainant falling asleep while driving in the field. The record reveals that OJI 2 informed S1 of her safety concerns with Complainant's driving after observing him appearing to fall asleep while driving. Moreover, the record reveals that S1 also witnessed Complainant fall asleep in a meeting and stated he had heard other reports of Complainant falling asleep on the job. We note that in his affidavit, Complainant stated that another Revenue Officer in Salinas, California (Employee X) has heart problems and takes medication similar to Complainant's which may cause drowsiness; however, the Agency continued to allow Employee X to drive and serve in every capacity as a Revenue Officer.
In the present case, Complainant asserted that management assigned him cases that required more driving than other Revenue Officers, and he claimed that he was assigned more cases involving Spanish speakers. Complainant argued that the disparity in geographical case assignment for him as the oldest probationary Revenue Officer is evidence of age discrimination. However, even assuming that this disparity in geographical assignments existed as Complainant argued, S1 explained that case assignments were determined before he met any of the probationary Revenue Officers, and were based on neutral, nondiscriminatory factors such as tax compliance issues. Similarly, S1 and Employee Y (a GS-7 probationary Tax Revenue Officer in Salinas, California during the relevant time) stated that there is no way to ascertain the language preference of an individual taxpayer at the time the case is assigned. Specifically, we find Complainant failed to show any evidence that any case assignments were based on his age or perceived disability.
In the present case, we find Complainant did not show that the Agency's decision to remove him for continued substandard performance or for revoking his driving privileges pending his resignation due to his falling asleep while driving, were based on discriminatory animus.2 Upon review, we find Complainant has failed to show that the Agency's actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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 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
June 27, 2012
__________________
Date
1 The record reveals that the Agency did not terminate Complainant effective immediately. Rather, the Agency granted Complainant's request to tender his resignation effective August 1, 2008.
2 We note Complainant did not claim he was actually disabled and in need of an accommodation to perform an essential function of his position.
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01-2010-1838
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101838