0120100856
06-09-2010
Rene' T. Foster, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Rene' T. Foster,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120100856
Agency No. IRS080759F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 10, 2009 final decision 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.
Complainant, a Tax Examining Assistant, alleged that the agency
discriminated against him on the basis of disability (Visual and Back)
when: 1) On July 8, 2008, his manager denied him use of annual leave to
cover a sick leave deficit; 2) On July 8, his manager argued with his
union representative about the use of annual leave in lieu of sick leave;
3) On July 8, his manager denied telling him he could not take annual
leave to cover a sick leave deficit; 4) On July 9, his manager repeatedly
denied him the opportunity to read a leave counseling memorandum before
signing it; 5) On July 9, his manager accused him of refusing to sign
the leave counseling memorandum; 6) On July 9, his manager placed her
fingers on the leave counseling memorandum as he attempted to place it
in his magnifier machine which resulted in the blurring of the image;
7) On July 9, his manager pressured and intimidated him by standing by
his desk while he attempted to read the document and attempted to send
a help e-mail to his union representative; 8) On July 10, his manager
sarcastically stated, "So what type of leave will you be taking today?";
9) On July 10, his manager accused him of being several minutes late
for work; 10) On July 11, his manager issued a counseling memorandum;
and 11) On July 11, his manager accused him of making a false statement
about her.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Because complainant
failed to request a hearing, the agency issued a final decision.
In its final decision, the agency found no discrimination. In reaching
this decision, the agency determined that even if complainant could
establish a prima facie case, the agency had articulated legitimate,
nondiscriminatory reasons for its actions. The agency stated that while
complainant repeatedly argued that he was a victim of a hostile workplace,
there is no evidence showing that complainant's supervisor denied
annual leave or told complainant he could not substitute annual leave
for sick leave. Management stated that the union stewards aggressively
supported complainant's version of events when they came into his office,
and so there was an argument. However, this is not a separate claim
but is more in the nature of background evidence concerning claims 1
and 3, and in any case, as explained above, there is no evidence that
complainant's supervisor denied annual leave or said she would do so.
There is no dispute that complainant's supervisor handed complainant a
leave counseling memo on July 9, 2008, but complainant's supervisor's
version of what happened thereafter in claims 4 - 7 is very different
from complainant's since she denied not giving him the opportunity
to read the letter, denied accusing him of refusing to sign, denied
touching the memo while complainant was reading it with the magnifier,
and denied pressuring or intimidating him to sign the memo.
Concerning claims 8 and 9, complainant admitted in an e-mail that
he was at least six minutes late, and thus management did not accuse
complainant of being late but was simply making a factual observation.
Complainant's supervisor denied asking her leave question in a sarcastic
manner and there were no witnesses. Regarding claims 10 and 11,
complainant's supervisor stated that she issued the counseling memo
because complainant had made false statements in his e-mails to a union
steward about her, and management could not repeatedly overtook this
type of behavior. In conclusion, the agency found that the events of
which complainant complains, either individually or collectively fail
to rise to the level of unlawful harassment. Most importantly, there
is no evidence that any of the actions or decisions of agency management
were motivated by unlawful reasons. Complainant failed to establish that
any of management's reasons for its actions were pretextual or unworthy
of belief. Complainant failed to establish discrimination under either
the theory of disparate treatment or unlawful harassment.
On appeal, complainant asserts, inter alia, that the investigation in
this matter was inadequate. He further asserts that his supervisor was
repeatedly untruthful in her statements concerning her interactions with
him.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), 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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) 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 his statutorily protected class; (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; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, complainant asserted that based on his statutorily protected class,
management continuously subjected him to a hostile work environment.
However, we find that complainant has not shown that he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
his protected class, or the harassment complained of was based on his
statutorily protected class. Further, complainant has not shown that
the purported harassment had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. While complainant has cited
various incidents where agency management has taken various actions that
were either adverse or disruptive to him, we find that complainant fails
to show that these incidents were as a result of unlawful discrimination.
Further, we find the investigation in this matter to be adequate.
After 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 evidence of record 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
June 9, 2010
__________________
Date
2
0120100856
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100856