Frank J. Garri, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJan 13, 2009
0120070458 (E.E.O.C. Jan. 13, 2009)

0120070458

01-13-2009

Frank J. Garri, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Frank J. Garri,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 0120070458

Agency No. TD062110

DECISION

On October 30, 2006, complainant filed an appeal from the agency's

September 26, 2006 final decision concerning his equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 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 AFFIRMS the agency's final decision.

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

as a Supervisory Appeals Officer, IR-0930-03, stationed in Jacksonville,

Florida. On December 13, 2005, complainant filed an EEO complaint

alleging that he was discriminated against on the basis of age (63)

when:

1. On August 14, 2005, his manager suggested it was time for him to

retire or he would be demoted;

2. On August 19, 2005, his manager spoke in a harassing tone, informed

him he might be demoted, and said she never valued any of his work; and

3. In October 2005, he received a performance appraisal for the period

ending September 30 with an average overall rating of "Met" and with

unfavorable comments in the narrative section.

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). In accordance with

complainant's request, the agency issued a final decision 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.

On appeal, complainant, through counsel, asks the Commission to "give

special consideration to those retired managers who came forward with

an affidavit to support my cause." Complainant asks the Commission to

reconsider the decision. In reply, the agency asserts that none of the

retired managers have any first-hand knowledge of the challenged actions

in this case. Additionally, the agency asserts that the record contains

no evidence that any of the managers who allege discrimination in this

record filed EEO complaints or otherwise challenged the discriminatory

treatment they allegedly suffered. Finally, the agency asks us to 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").

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age." 29

U.S.C. � 623(a)(1). When a complainant alleges that he or she has been

disparately treated by the employing agency as a result of unlawful

age discrimination, "liability depends on whether the protected trait

(under the ADEA, age) actually motivated the employer's decision."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)

(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,

[complainant's] age must have actually played a role in the employer's

decision making process and had a determinative influence on the

outcome." Id.

Harassment

Complainant alleges that he was subjected to a hostile work environment

and harassment. To establish a prima facie case of hostile environment

harassment, a complainant must show that: (1) s/he is a member of a

statutorily protected class; (2) s/he was subjected to harassment in the

form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. In this

case, complainant has not persuaded the Commission that the alleged

harassing acts were motivated by age-based discriminatory animus.1

Performance Appraisal

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming complainant can establish a prima facie case of age

discrimination, the agency has articulated a legitimate, nondiscriminatory

reason for his "Met" rating. Specifically, complainant's manager

indicated that complainant's performance warranted this rating.2 Although

complainant disagrees with management's critiques of his work, he has

not presented evidence that the agency's reason is, more likely than

not, a pretext for age-based discrimination. In so finding, we note

that we do not have the benefit of an AJ's findings after a hearing,

as complainant chose a FAD instead and therefore, we can only evaluate

the facts based on the weight of the evidence presented to us.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 19848,

Washington, D.C. 20036. 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 (S0408)

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 (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

January 13, 2009

__________________

Date

1 We note that there is a dispute as to what actually transpired

concerning complainant's allegation that his manager told him that she

did "not value" any of his work. The manager indicates that what she in

fact stated was that she "had never valued his work over a 'met rating'

in either of the times where he directly reported" to her. Report of

Investigation, at 59.

2 In the leadership section of the summary evaluation, complainant's

manager indicated that leadership had fallen to complainant's peer manager

and that complainant needed to demonstrate considerably more initiative.

In the employee satisfaction section, the manager stated that the team's

survey results were less than expected and improvement was needed in

addressing employee needs and concerns.

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0120070458

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036