[Redacted], Trent M., 1 Complainant,v.Janet Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 17, 2021

Appeal No. 2019005548 (E.E.O.C. Feb. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trent M.,1 Complainant, v. Janet Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019005548 Hearing Nos. 480-2015-00393X; 480-2015-00394X Agency Nos. IRS-14-0081-F; IRS-14-0387-F DECISION On August 19, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 20, 2019 final decision concerning the above-referenced equal employment opportunity (EEO) complaints 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 decision. BACKGROUND Until August 8, 2014, Complainant worked as an Internal Revenue Agent, GS-0502-11, at the Agency’s Field Office in El Monte, California. On April 1, 2014, Complainant filed an EEO complaint (Agency No. IRS-14-0081-F (81)) in which he alleged that the Agency discriminated against him on the bases of disability (unspecified), age (53), and reprisal (prior protected EEO activity) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019005548 2 1. Complainant received a memorandum from the Reasonable Accommodation Team Manager (RATM) dated December 3, 2013, asking if he wanted to be considered for possible reassignment; during a meeting on December 6, 2013, the Reasonable Accommodation Team Manager allegedly intimated that if Complainant did not participate in the reassignment process, he would be removed for cause; 2. In January 2014, Complainant was denied his reasonable accommodation request; management allegedly failed to engage in the reasonable accommodation interactive process; 3. Complainant was charged with Absence Without Leave (AWOL) on November 13-15, 21-22, and 25-27, 2013; December 2-5 and 9-11, 2013; and January 13-17 and 21-23, 2014; 4. On or about December 4, 2013, Complainant found out that management planned to deny his within-grade increase; 5. In September 2013, Complainant received a negative mid-year performance evaluation; and 6. In December 2013, Complainant’s caseload was assigned to other employees. On July 31, 2014, Complainant filed Agency No. IRS-14-0387-F (387) in which he alleged that he was subjected to discrimination and a hostile work environment because of his age and prior protected EEO activity when: 7. Management has continuously refused to approve leave under the Family and Medical Leave Act (FMLA); 8. Management has continuously refused to approve advance annual leave; 9. Complainant was charged with AWOL during Pay Periods 4-13; 10. Complainant discovered that management had removed documents from his employee performance folder; and 11. Complainant was not selected for the position in Vacancy Announcement No. 12CW5- PGN1414-1801-12-13S. Complainant identified his Group Manager, his immediate supervisor, and the Territory Manager, his second-line supervisor, as the officials responsible for the above-described incidents. On November 3, 2014, the Agency consolidated the complaints for processing. During the course of the ensuing investigation, the EEO Investigator reported that she had attempted to obtain a declaration from Complainant regarding incidents (1) through (6) six times between August and 2019005548 3 November 2014 and that Complainant had failed to respond. Investigative Report (IR) 69-84. The Investigator likewise attempted six times between October and December 2014 to obtain an affidavit or a declaration from Complainant concerning incidents (7) through (11), and reported that Complainant again failed to respond. IR 953-966. On August 13, 2015, the Agency was able to secure from Complainant a pair of declarations addressing all 11 incidents comprising his two claims. IR 1368-1396. The consolidated investigation was completed without Complainant’s participation on March 3, 2015. The Agency provided Complainant with a copy of the investigative report and notice of his right to request a hearing before an EEOC Administrative Judge (AJ) on both complaints. Complainant requested hearings, but the AJ assigned to the matters remanded the complaints to the Agency for issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b). In its ensuing decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. Complainant appealed the decision but did not submit a brief or statement in support of his appeal. Incident (1): When asked by the EEO Investigator whether he had a medical condition, Complainant responded, “see emails sent to management officials, doctor’s notes, letters, and other information provided to management.” He gave the same answer when asked if his condition substantially limited any of his major life activities. IR 1373-74. When asked to explain the events that led to his receiving the December 3, 2013 memorandum from the RATM, he replied, “Ask [the RATM].” IR 1387. In that memorandum, the RATM asked Complainant whether he wanted to be placed in the reasonable accommodation reassignment program. In the memorandum, the RATM noted that Complainant had requested to be assigned an 11:30 a.m. - 8:00 p.m. shift as a reasonable accommodation and that such a shift was not available. IR 102. S1 averred that the RATM was only informing Complainant that being placed in the reassignment process would be a way to find a position that had his desired tour of duty. IR 90. Incident (2): When the EEO Investigator asked Complainant what type of accommodation he was alleging that management failed to provide him in January 2014, Complainant responded, “see doctors notes/letters and other information provided to management.” He also averred that management never engaged in a good faith interactive process and never offered him reasonable or effective accommodations. IR 1389-90. S1 responded that she was the official who had denied Complainant’s request for reasonable accommodation because it consisted of working a tour of duty from 11:00 a.m. to 7:30 p.m., which would not allow him to perform the essential functions of his job as a Revenue Agent. IR 91-92. Incident (3): Complainant maintained that he had always requested leave in advance, either by email or by phone. He also made a statement to the investigator that his complaint should have included more dates than those specified in the allegation for which his leave requests were denied. When asked what reason management gave him for not granting his leave requests, Complainant provided no response. When the investigator asked what explanation management provided for charging him with AWOL, Complainant told her, “ask them.” IR 1390-91. 2019005548 4 S1 averred that she was the official who had approved leave requests for everyone on her team, including Complainant, that Complainant had sought to use leave without pay (LWOP) on the dates in question, and that she denied Complainant’s requests because he had not provided doctor’s notes to verify his absences. S1 explained that she charged Complainant with AWOL for all of the dates for which leave was denied. IR 93-94. Incident (4): When asked to describe the events that led up to his being told that management had planned to deny him his annual within-grade increase in December of 2013 and to explain how he was harmed by the Agency’s actions, Complainant provided no response. IR 1391-92. S1 stated that on September 16, 2013, when Complainant had received his annual performance appraisal for Fiscal Year 2013, he was advised of management’s intent to withhold his within-grade increase, and that he was told again on January 16, 2014, that his within-grade increase would be withheld due to Complainant’s minimally successful work performance. IR 94. Incident (5): When asked what rating he was given and what the reason was for giving him that rating, Complainant told the investigator to get her answers from management. IR 1392-94. S1 affirmed that she issued Complainant a performance appraisal rating of minimally successful on December 2, 2013 because of his poor performance in the individual critical job elements, particularly customer relations and completing assignments on time. S1 pointed out that Complainant had consistently failed to keep taxpayers and their representatives informed of delays in competing examinations or whether and to what extent reexaminations of returns would be necessary. IR 96-97. Incident (6): When asked to describe the events leading up to his caseload being reassigned to other agents, Complainant claimed that management pretended not to know or ignored the fact that he was very ill, and that management had allowed his cases to sit for months before finally reassigning them. IR 1394-95. S1 asserted that management had reassigned Complainant’s inventory due to his failure to report for duty and perform work on his assigned cases. S1 stated that all of Complainant’s inventory was reassigned to the other revenue agents in his group, and that it was necessary to take this action because Complainant was not performing any of his job duties. IR 98. Incident (7): Complainant alleged that S1 denied his requests for leave pursuant to the FMLA. However, he did not provide substantive answers to the EEO Investigator’s questions regarding the circumstances of those denials or how he had been harmed. Rather, he told the Investigator to “ask management.” IR 1374-75. S1 averred that Complainant had sent her an email invoking his right to use FMLA leave on December 12, 2013, and that she responded that he would not be able to use FMLA leave until 12 months had passed since the last calendar year when he requested to use FMLA leave in the month of February 2013. S1 also affirmed that Complainant’s requests were denied due to Complainant not providing the required medical information. IR 971-72. Incident (8): When the Investigator asked Complainant to provide the dates in 2014 on which management denied his requests for advanced annual leave, Complainant responded that she should “ask management for the hundreds and thousands of emails.” 2019005548 5 Complainant did not provide a response to the question of how he was harmed. IR 1376-77. S1 affirmed that Complainant had requested advanced annual leave through 2013 and 2014, even though he had been specifically told previously that he was not eligible to use any advanced annual leave. S1 averred that Complainant had been advised that his requests for advanced annual leave would not be approved due to unacceptable performance and disciplinary actions being taken against him. IR 972-73. Incident (9): When asked by the EEO Investigator to provide specific dates during the period spanning pay period 4 and pay period 13 that he was charged as AWOL, Complainant told her, “get it from management.” Complainant also insisted that he always requested leave in advance. IR 1377-78. S1 averred that she charged Complainant as AWOL when he did not request to use leave. IR 974. Incident (10): When asked by the EEO Investigator to describe the events that led to his discovery that management removed documents from his EPF, Complaint replied, “ask management.” He stated that all workers’ compensation paperwork was removed and other documentation was removed. IR 1378-79. S1 affirmed that no documents were removed from Complainant’s EPF. IR 975-76. Incident (11): When asked by the EEO Investigator when he applied for the position, Complainant told her to get her answers from the human resources office. IR 1379-81. An email from a Human Resources Specialist to the EEO investigator dated October 29, 2914 stated: Concerning the vacancy announcement in question, this vacancy announcement was established as a six-month roster of eligible applicants to be referred as vacancies become available. This roster will be utilized for up to six months from the date the roster was established. In addition, [Complainant] was not listed as an applicant in this package. IR 1383. ANALYSIS AND FINDINGS Standard of Review 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). 2019005548 6 Denial of Reasonable Accommodation - Incidents (1) & (2) Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). We will assume that Complainant is a qualified individual with a disability. We find that Complainant’s answer to the investigator to refer to the information he provided to management was nonresponsive to the Investigator’s question. Ultimately, we find that the Agency satisfied its obligation to offer Complainant reasonable accommodation when the RATM offered to place him into the Agency’s reassignment program in order that he could find a position with the tour of duty that he desired. Complainant declined the option and has not shown that reassignment would have otherwise been an ineffective accommodation. As a result, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment 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, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 and the Human Resources Specialist articulated legitimate and nondiscriminatory reasons for their actions vis-à-vis Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incidents (3), (7), (8), and (9), S1 stated that she denied his leave requests and charged him with AWOL because Complainant had been absent from work without having first requested leave, that he did not provide medical documentation to support his leave requests, and that he had performance and discipline issues. Regarding incidents (4) and (5), S1 stated that Complainant was given a low performance rating and denied his within-grade increase because his performance was minimally successful in every one of his critical job elements. Concerning incident (6), S1 averred that she had to reassign Complainant’s work to his colleagues because of his excessive absenteeism. With respect to incident (10), S1 denied that anyone from management had removed documents from Complainant’s EPF. With regard to incident (11), the HR Specialist stated that Complainant’s name was not listed as an applicant for the position on the roster of eligible candidates for the position in question. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2019005548 7 Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO Investigator why he believed that any of the events at issue in his two complaints occurred because of his age, disability, or prior EEO activity, Complainant gave no answer at all. IR 1381, 1395. In fact, Complainant did not provide his two declarations until long after the consolidated investigation had been completed and the investigator had tried to reach him on multiple occasions. When he finally did provide his declarations, he failed to provide answers to most of the investigator’s questions and when he did respond, he told the Investigator to “go ask management.” Complainant has submitted neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by Agency officials or which cause us to question the Agency officials’ veracity as witnesses. We therefore find, as did the Agency, that the evidentiary record in this case does not support a finding that any Agency official relied upon unlawful considerations of Complainant’s protected classes in connection with any of the incidents raised in the two complaints referenced above. Hostile Work Environment: To the extent that Complainant is alleging that s/he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2019005548 8 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. 2019005548 9 Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 17, 2021 Date