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