Sam Tawadrous, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 7, 2009
0120083413 (E.E.O.C. Jan. 7, 2009)

0120083413

01-07-2009

Sam Tawadrous, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Sam Tawadrous,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120083413

Hearing No. 450-2007-00407X

Agency No. 02-2289

DECISION

Complainant filed an appeal from the agency's February 28, 2008 final

order 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. For the following

reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

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

worked as a Tax Compliance Officer for the agency in Dallas, Texas.

On March 5, 2007, complainant filed an EEO complaint alleging that he was

discriminated against on the bases of national origin (Greek/Egyptian),

disability (difficulty climbing stairs), age (over 40 years old) and

reprisal1 when:

1. Complainant was harassed by his manager when:

a) Complainant's Manager requested he attend Bank Secrecy

Act training for new employees as a refresher;

b) From October 6, 2006 to December 2006, complainant

received failing work-load reviews;

c) On October 9th, 2006, complainant received a letter

transferring his duty station;

d) On January 4, 2007, complainant was issued a five-day

suspension; and

e) On January 23, 2007, complainant was removed from

FlexiPlace.

2. On December 23, 2006, complainant was not selected for the

position of Internal Revenue Agent, Examiner, GS-0512-12, announced

under Vacancy Announcement Number 50-14-SP70158B;

3. On December 23, 2006, complainant was not selected for the

position of Internal Revenue Agent, Examiner, GS-0512-12, announced

under Vacancy Announcement Number 50-14-SP-70178B;

4. On January 24, 2007, complainant was not selected for the

position of Internal Revenue Agent, GS-0512-12, announced under Vacancy

Announcement Number 50-14-SP-70224B;

5. On January 31, 2007, complainant was not selected for the position

of Internal Revenue Agent, Examiner, GS-0512-12, announced under Vacancy

Announcement Number 50-14-SP-70221B;

6. Complainant's Manager failed to allow him to review his official

personnel folder and told him he would be receiving an unacceptable

annual performance appraisal at the end of May 2007.

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). Complainant requested

a hearing. The AJ held a hearing on January 15 and 17, 2008 and issued

a decision on February 21, 2008.

In her decision, the AJ found that complainant did not provide sufficient

information to show he was a qualified individual with a disability.

Specifically, complainant submitted evidence that he was told to avoid

stairs for a month. The AJ found this did not rise to the level of a

disability within the meaning of the Section 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq. The AJ further found

that complainant's Manager, (M1) had some idea of complainant's age and

that he was not American born based on his appearance and his accent.

The AJ found that the Manager was aware of complainant's prior EEO

activity. However, the AJ found that complainant did not show that M1

based any of her decisions on his national origin, or age, nor his prior

EEO activity. Significantly, the AJ observed that complainant's hearing

behavior mirrored the behaviors that M1 addressed by taking disciplinary

measures and other actions, with respect to complainant's work performance

and conduct. The AJ noted that complainant did not listen to the AJ's

instructions and did not follow the AJ's directions during the hearing.

The AJ found that complainant was not subjected to harassment as alleged

(claim (1) and claim (6)).

With respect to the nonselection claims (2) through (5), the AJ found that

none of the selecting officials conducted interviews of the candidates.

The officials were unaware of complainant's age, national origin,

disability or prior EEO activity. Further, the AJ did not find that

complainant was clearly more qualified than the individuals selected.

Therefore, the AJ found complainant was not discriminated against on

any basis when he was not selected for the subject positions.

Accordingly, the AJ found that complainant did not prove national

origin, age, disability or reprisal discrimination occurred as alleged.

The agency subsequently issued a final order on February 28, 2008,

adopting the AJ's finding that complainant failed to prove that he was

subjected to discrimination.

On appeal, complainant restates many of the same arguments raised at

the hearing. Complainant adds that he was notified by M1 of his proposed

removal shortly after the hearing.2

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

To establish a claim of harassment based on race, sex, disability, age,

or reprisal, complainant must show that: (1) he is a member of the

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 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. The

harasser's 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).

Further, the incidents must have been "sufficiently severe and pervasive

to alter the conditions of complainant's employment and create an abusive

working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case 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.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

In the instant case, we find that substantial evidence supports the AJ's

findings and conclusion that no discrimination occurred. Specifically,

we find that, assuming for argument's sake only3, that complainant

established a prima facie case of discrimination on any basis, we

find the agency has articulated legitimate, nondiscriminatory reasons

for its actions. For example, M1 described complainant's failure to

comply with her directions and instructions with respect to accessing

his electronic mail messages after hours and M1 imposed progressive

discipline to address complainant's behavior. From his statements at

the hearing, complainant believed that he was allowed to access his

mail messages anytime because he worked under a flexi-place arrangement.

Similarly, M1 notified complainant that with the imposition of discipline,

complainant was to be removed from the flexi-place program based on the

terms of that program and the applicable collective bargaining agreement.

In order to address deficiencies in complainant's work performance,

M1 changed complainant's duty station to provide him with additional

resources so that he would have an opportunity to improve his performance

and to allow her to have closer supervision.

We find that complainant did not show that he was plainly more qualified

than the candidates selected for the positions described in his complaint.

Significantly, we note that the selecting officials based part of their

decision on the presentation of the application materials submitted

by candidates. Witnesses noted that complainant's application package

was less presentable (contained spelling errors, for example)4 and

provided less detailed information regarding his work experience than

the applications submitted by the selected applicants. Further, while

complaint had more years of experience, we find, as did the AJ, that more

years of experience does not necessarily mean that complainant was more

qualified for the positions for which he applied and was not selected.

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

we AFFIRM the agency's final decision finding no discrimination.

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 7, 2009

__________________

Date

1 Complainant's complaint was amended to add claims and the basis of

reprisal in May 2007.

2 As a preliminary matter, we remind complainant (as he notes the AJ

suggested when she was told of his receipt of the proposed removal

notice) that he must seek EEO counseling for any claims that arose as

a consequence of the hearing in January 2008, if he wishes to file an

EEO complaint regarding such actions.

3 We assume, without so finding, that complainant was a qualified

individual with a disability.

4 We find the record documents complainant submitted reflect numerous

spelling and grammatical errors as well.

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0120083413

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120083413