0120091602
08-20-2009
Jaimon J. Mappilaparampil, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Jaimon J. Mappilaparampil,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091602
Agency No. EEODFS-07-1047-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 4, 2009 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., 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.
During the period at issue, complainant was employed as an Information
Technology Specialist, GS-2210-12, at the agency's Internal Revenue
Service (IRS)/Modernization & Information Technology Services (MITS)
in Detroit, Michigan.
On November 8, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and
a hostile work environment on the bases of national origin (Indian),
sex (male), disability (anxiety and elevated blood pressure), and in
reprisal for prior EEO activity when:
1. beginning in October 2005 and continuing, his first level supervisor
and project lead have allegedly given him irrelevant work assignments
and asked for status assignment reports that do not comport with agency
policies, standards and guidelines of systems development;
2. on August 16, 2007, he was placed on a Performance Improvement Plan;
3. on August 16, 2007 and September 5, 2007, his requests for reasonable
accommodation were denied;
4. in early November 2007, he learned he was not selected for the position
of PC Server and Web Application Developer under Vacancy Announcement
Number 07-WA1-MIE-161-2210-13;
5. in early November 2007, he learned he was not selected for the position
of Lead Information Technology Specialist under Vacancy Announcement
No. 07-WA1-MIE-148-2210-13;
6. on March 11, 2008, his first level supervisor gave him a Letter of
Oral Admonishment confirmed in writing; and
7. on June 19, 2008, he received a performance appraisal with a rating of
"unacceptable."1
At the conclusion of the investigation, complainant was provided
with a copy of the 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).
In its February 4, 2009 final decision, the agency found no
discrimination. The agency determined that complainant did not show by
a preponderance of the evidence that he was discriminated against on the
bases of national origin, sex, disability and reprisal discrimination.
With respect to complainant's harassment claim, the agency found that
complainant did not prove he was subjected to harassment sufficiently
severe or pervasive so as to render his work environment hostile.
Regarding claim 1, complainant's project lead (PL) stated denied
complainant's allegation that he was given irrelevant assignments and
asked for status assignment reports that do not comport with agency
policies, standards and guidelines of systems development. PL further
stated that during the timeframe December 2004 through March 2008, she
provided 12 assignments to complainant all of which were "in conformance
with the FSP (Functional Specification Requirements), and ELC (Enterprise
Life Cycle) Methodologies." PL stated that during the relevant time,
complainant had "3 White Males and 3-Black Females who have all taken
part in helping him with System Development work on our team for a total
of 4 years." PL stated she noted when complainant "does disagree with
something you want him to do, he becomes hostile and irate with anyone
who ask questions regarding the status of assignments or request that
work be corrected when it is incorrect." PL stated that on April 8, 2008,
complainant walked out of a Walk-Through meeting and "when [complainant's
first level supervisor (S1)] called him back in, he just kept walking."
PL stated that Walk-Through meetings are required for all employees in
MIST organization.
Further, PL stated "it is always required by Upper Management that status
reports be given. The Project Leader's on this team have a weekly meeting
with [S1]. [S1] ask all of us individually regarding work progress of
each employee on our projects. This helps to ascertain whether or an
employee can work on someone else's project." PL stated that complainant
"90% of the time never completes an assignment. When an assignment
is given, I and several others have witnessed the Complainant stating:
'I refuse to be treated like a slave.' I find this very offensive and
did not appreciate the statement [emphasis added]." PL also stated that
every time complainant is given an assignment, he "always makes statements
that he is being harassed verbally and loud enough for everyone to hear."
S1 stated that all of complainant's assignments "are relevant. Again,
[Complainant] receives Work Breakdown Structures (WBS) for OP500
and SOI-IRP projects depicting his duties and responsibilities for a
calendar year." S1 further stated "some work assignments are assigned to
[Complainant] to provide on-the-training for COBOL, JCL, Oracle, SQL,
and JMR. These are software applications utilized/supported by the
section."
The Chief, Compliance Analytics Branch stated "all work received
into the branch is relevant and comes in on a work request from
our clients/customers. The project leader develops a Work Breakdown
System (WBS) from the work request received for all work assignments.
Additionally, work assignments are based on the need to comply with all
IRS established processing standards and guidelines."
Regarding claim 2, S1 stated that in 2006, complainant received an Average
Critical Job Element (CJE) score of 1.20 and that in 2007, he received
a CJE score of 1.00. The record reflects that according to S1, these
ratings reflected unsatisfactory performance for complainant's 2005 and
2006 rating periods. S1 further stated "according to the 2006 National
Agreement, Article 40: Unacceptable Performance: for an employee whose
performance fails to meet established performance standards in one or
more critical job elements in the employee's position." S1 stated that
complainant's Performance Improvement Plan "was devised to assist the
employee to improve his performance." S1 stated, however, complainant's
performance did not improve.
Regarding claim 3, S1 stated that in November 2006, complainant submitted
an application for Hardship Reassignment/Relocation request but it was
rejected because "he did not meet the criteria according to 2006 National
agreement for IRS and NTEU, Article 15 Section 5L, 'Employees will not
be eligible for hardship relocation if they are not performing at a fully
successful level or above or if they are not the subject of a continuing
conduct investigation." S1 stated that in January 2007 and August 2007,
complainant submitted an application for Hardship Reassignment/Relocation
request citing high blood pressure as his disability. S1 stated "on both
occasions the FOHS Medical Examiner recommended referring the employee to
the employee assistance program and Complainant's request for reasonable
accommodation was denied."2
Regarding claim 4, the Branch Chief of e-Services stated that he was the
selecting official (SO) for the position of PC Server and Web Application
Developer under Vacancy Announcement Number 07-WA1-MIE-161-2210-13.
SO stated that he selected the selectee for the subject position because
he "had recent experience with complex web application development
which the complainant lacked." SO further stated that he relied on
an interview panelist (P1)'s briefing that "the interviews determined
that there was only one applicant with recent experience in complex web
application development."
P1 stated that following the interviews, the interview panel recommended
the selectee to the SO based on his critical technical skills and project
management experience. Specifically, P1 stated that the subject position
"is a senior position which must demonstrate a high level of proficiency
in the technical skills needed to support the section projects as well as
the project management leadership utilizing those skill sets." P1 stated
that complainant lacked experience developing complex web applications
and "has not used DTS extensively and that is a critical tool in the
environment." P1 further stated that complainant's description of the
web applications "that he has programmed was weak compared with the
selected candidate. [Complainant's] technical experience is dated and
therefore he would require training as well as on the job experience."
With respect to complainant's allegation that he saw one of the panelists
(P2) speaking with his manager about his qualifications for the subject
position, P2 stated "not that I remember."
Regarding claim 5, the record contains a copy of a Branch Manager of the
EEO & Diversity Field Services's letter dated January 8, 2009 concerning
the position of Lead Information Technology Specialist advertised under
Vacancy Announcement No. 07-WA1-MIE-148-2210-13. Therein, the Branch
Manager stated that the subject position was cancelled on December 6,
2007. The record further reflects that there was no reason given for
the cancellation of the subject position.
Regarding claim 6, S1 stated that on March 3, 2008, she sent complainant
an email instructing him to comply with a February 1, 2008 request of
PL requesting team members "to provide a weekly status report on their
assignments to the project leader and herself." S1 further stated that on
March 4, 2008, complainant "stated in his email that he had completed his
assignments on time and had provided me with a copy before the due date.
[Complainant's] assignment specification instructed him to place his
program in OP500's library on ECC-Detroit mainframe. I could not locate
the program in the library, so I requested a hardcopy of the program.
About thirty minutes later, [Complainant] came by my office and shouted,
'I am telling you verbally that I am not giving you another hardcopy
of the program.'" S1 stated that complainant received the subject
assignment in October 2007 and was given seventeen days to complete
the assignment. S1 stated "as of June 13, 2008, this assignment is
still incomplete. The assignment's due date has been revised three
times upon [Complainant's] request." S1 stated that after consulting
with the Chief and a Human Resources Specialist, she issued complainant
a Letter of Oral Admonishment dated March 11, 2008.
Regarding claim 7, S1 stated that complainant received a rating of
"unacceptable" on his performance appraisal because he failed to meet
the CJE expectations. S1 stated that during the rating period, she
relied on the PIP, status reports from complainant and project leaders,
meetings with complainant to discuss his performance and quarterly
reviews, and the WBS to review and appraise complainant's performance.
S1 stated that she held PIP meetings with complainant on the following
dates in 2007: May 10, August 15 and 30, September 5, 19 and 25, October
4, 11, 18 and 23. S1 further stated that quarterly review meetings were
held on the following dates: October 18, 2007 and January 31, 2008.
S1 stated that she held work performance meetings with complainant on
the following dates: February 12, 2008 and March 11, 2008.
Further, S1 stated that the CJEs describe "what an employee must do:
performance aspects provide more specificity on what must be done and
describe how well the work must be done by the employee." S1 stated that
complainant does not complete his assignments but claims he has done so.
S1 further stated "yet, it has been explained to him, over and over again,
if the product from his assignment does not comply with the specifications
in the assignment package or if the product contains errors then it is
not completed. Therefore, [Complainant] more than occasionally did not
meet the GS-2210 performance standards."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
Reasonable Accommodation
Complainant asserted that he was discrimination against based on
his disability (anxiety and elevated blood pressure) when his August
2007 and September 2007 requests for a reasonable accommodation to be
transferred to another data management group were denied. Complainant
further stated that approximately two or three weeks after submitting his
requests, he received a letter from the agency's Reasonable Accommodation
Coordinator stating his request was denied because he did not have a life
changing event. After reviewing this claim in context, it appears that
complainant is asserting that the agency failed to reasonably accommodate
him by not transferring him to another data management group. Therefore,
we will analyze this claim as an allegation of a failure to reasonably
accommodate.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can
show that accommodation would cause undue hardship. 29 C.F.R. � 1630.
Reasonable accommodation includes modifications to the manner in which
a position is customarily performed in order to enable a qualified
individual with a disability to perform the essential job functions.
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. 1630. In order to establish that
complainant was denied a reasonable accommodation, complainant must show
that: (1) he is an individual with a disability, as defined by 29 C.F.R. �
1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation absent undue hardship. See Enforcement Guidance; Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, Notice No. 915.002 (October 17, 2002). (hereinafter referred to as
"Enforcement Guidance").
The Commission determines that nothing in the record supports a finding
that complainant's purported disability motivated the agency's actions.
To the extent that complainant claims in claim 3 that he was denied a
reasonable accommodation, we determine that complainant has not shown
that the requested accommodations were necessary to accommodate any
purported disabilities. Moreover, a request for a reassignment to a new
supervisor does not constitute a request for reasonable accommodation. See
Enforcement Guidance, Question 33 ("An employer does not have to provide
an employee with a new supervisor as a reasonable accommodation.")
On appeal, complainant has not provided any persuasive argument regarding
the propriety of the agency's finding of no discrimination. Therefore,
upon a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the record evidence does not establish that
discrimination occurred.
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 (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
August 20, 2009
__________________
Date
1 The record reflects that complainant's allegation of harassment and
claims 1 and 6, 7 were later amended to the instant complaint.
2 The record in this case reflects the following three reasonable
accommodation requests in an approximately one year period: (a) the
November 2006 request, for an agency posting in Pontiac, Michigan; (b)
the January 2007 request to be placed in a Tier II or Tier III area
under a different supervisor; and (c) the August 2007 request to be
placed in a Tier II or Tier III area, also under a different supervisor.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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