0120083792
02-04-2009
Michael Mizo, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Michael Mizo,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120083792
Agency No. IRS-08-0414-F
DECISION
Complainant filed an appeal from the agency's August 19, 2008 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.
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.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Tax Specialist (probationary employee) at the agency's
facility in Las Vegas, Nevada.
On May 13, 2008, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of race (Asian). By letter dated May
27, 2008, the agency accepted complainant's complaint for investigation
and determined that it was comprised of the following claim:
Was complainant discriminated against on the basis of his race, when he
was terminated during probation?
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), 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. The agency found
that it offered legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency asserted that management had various concerns
regarding complainant's conduct which were set forth in a termination
letter issued to complainant. The agency further found that complainant
failed to establish that the agency's articulated reason was pretext
for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the agency's final decision finding
no discrimination is improper. Specifically, complainant asserts that he
did not hug another agency employee (E1) but only touched her shoulder.
Complainant reiterates that he was discriminated against based on race.
In response, the agency requests that we affirm it final decision.
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 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").
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).
The record reflects that the agency articulated legitimate,
nondiscriminatory reasons for complainant's termination. The record
contains a Declaration Under Penalty of Perjury from the acting Field
Assistance Territory Manager (M1) during the relevant time period.
Therein, M1 asserts that race did not play a role in his decision to
terminate complainant and that his decision to terminate complainant was
based on complainant's conduct as set forth in the termination letter.
The record contains a copy of complainant's termination letter dated
March 31, 2008 from M1. Therein, M1 states that complainant during his
probationary period failed to demonstrate acceptable conduct. M1, in the
termination letter, lists various incidents including that complainant
asked E1 several inappropriate questions (what was her phone number,
if she would come to complainant's house on the weekend, etc.).1 In
addition, M1, in the termination letter, states that complainant kissed
E1.2
The record also contains a Declaration Under Penalty of Perjury
from E1. Therein, E1 asserts that "[complainant] began to put his
hand on [her] shoulder and leave it there whenever he would talk to
[her]. That progressed to rubbing of the shoulder then to rubbing of
the arm..." In addition, E1 states that complainant provided her with
his phone number and asked her to come to his apartment. Furthermore,
E1 states that complainant kissed her on her forehead and on her cheek.
Upon review of the record, we find that complainant failed to establish,
by a preponderance of the evidence, that the agency's articulated
reason for its action was pretext for discrimination. The record
contains a Declaration Under Penalty of Perjury from complainant.
Therein, complainant acknowledges hugging E1 on several occasions.
While complainant on appeal, asserts that he did not mean that he
actually hugged A1 but that he only touched her shoulders, assuming
arguendo that complainant's assertion is true, we find that this is
insufficient to establish that the agency's articulated reason for
complainant's termination is pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
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
February 4, 2009
Date
1 Complainant denies asking these questions.
2 Complainant denies that he kissed E1.
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0120083792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083792