0120073626
10-30-2009
Steven D. Clark, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Steven D. Clark,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120073626
Hearing No. 470-2006-0078X
Agency No. 052265
DECISION
On August 10, 2007, complainant filed an appeal from the agency's July
18, 2007 final order 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. 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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Tax Examining Technician in the Wage and Investment Division,
Innocent Spouse Department at the agency's Florence, Kentucky facility.
Complainant has no right arm and requested voice-activated computer
software as a reasonable accommodation. In February 2004, the agency
provided complainant "Dragon Naturally Speaking" (Dragon) software
and a two-day training session for the use of the software, however
complainant experienced compatibility problems with other work software.
Complainant continued to experience problems with the software and
received extra training. Complainant claims that he was constantly told
by his supervisors that he was not working fast enough and not producing
enough cases. Complainant's first-line supervisor (S1) began issuing
complainant progress letters to address his performance issues. On
January 26, 2005, complainant was issued a performance appraisal which
rated his overall performance as "Unacceptable." Complainant claims
that the agency continued to harass him, including issuing him a proposed
termination letter on November 18, 2004, which was later rescinded.
On March 21 2005, complainant filed an EEO complaint alleging that he
was denied a reasonable accommodation on the basis of his disabilities
(no right arm and generalized anxiety disorder) when:
1. Beginning in October 2003, the voice-activated "Dragon Naturally
Speaking" computer software did not interface with his work software.
Complainant alleged that he was discriminated against on the basis of age
(50) and disabilities when:
2. On January 26, 2005, complainant was issued a performance appraisal
which rated him "Unacceptable" for Critical Element V, Business Results -
Efficiency; and, which also rated complainant's performance overall as
"Unacceptable."
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 timely
requested a hearing. On December 11, 2006, the AJ held a telephonic
pre-hearing conference and ordered that the following hostile work
environment claim be included:
3. Beginning on or about October 2003 and continuing until August 31,
2004, the agency subjected complainant to a hostile work environment
(received negative progress letters, pushed to work through the Dragon
compatibility issues, and was held to measured production standards
for a non-measured job) based upon his disabilities (no right arm and
generalized anxiety disorder).
On December 29, 2006, the AJ issued an order granting in part and denying
in part the agency's Motion for Partial Dismissal, Motion for a Decision
Without a Hearing, and Memorandum of Law in Support of its Motions.
The AJ found that complainant had voluntarily withdrawn claim (3)
and the no right arm disability discrimination portion of claim (1).
In the same order the AJ decided without a hearing that the agency
had not denied complainant a reasonable accommodation on the basis of
his generalized anxiety disorder disability as to claim (1) and did
not discriminate against complainant on the bases of age and mental
disability as to claim (2).1
The AJ found that the remaining claims to be addressed were:
A. Whether complainant was discriminated against on the basis of physical
disability when on January 26, 2005, he was issued a performance appraisal
which rated him "Unacceptable" for Critical Element V, Business Results
- Efficiency; and, which also rated the his performance overall as
"Unacceptable;" and,
B. Whether, beginning on or about September 1, 2004 and continuing
until on or about May 28, 2005, the agency subjected complainant to
a hostile work environment (issued notice of proposed termination of
his employment, issued negative progress letters, and held to measured
production standards for a non-measured job) based upon his disability
(no right arm).2
The AJ held a hearing over the course of three days beginning on January
4, 2007 and issued a decision on June 26, 2007. As to claim (A), the
AJ found that complainant was issued the rating in question because he
was not completing an acceptable quantity of work. The AJ held that
complainant failed to show that the agency's reasons were pretextual
and therefore, he had not been discriminated against on the basis of
his disability (no right arm).
As to claim (B), the AJ found that complainant failed to establish
a prima facie case of disability-based harassment. The AJ held that
complainant failed to establish that the alleged acts of harassment were
motivated by or related to complainant's disability (no right arm) or
that they were sufficiently severe and/or pervasive within the meaning
of the law to affect a term, condition, or privilege of employment.
As a result, the AJ held that complainant was not subjected to a hostile
work environment on the basis of his disability (no right arm).
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to a hostile work
environment and discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency failed to follow the
agency's collective bargaining agreement in handling complainant's
promotion on December 16, 2001. Complainant claims that had the agency
followed its own policy, complainant would have been allowed to return
to his prior grade and job and the agency's attempts to fire him would
not have been necessary. Additionally, complainant avers that he was
only able to do his job when trainers were sitting right next to him,
but was never offered to return to a similar job he held previously.
Complainant alleges that his second-line supervisor (S2) created a hostile
work environment which resulted in many managers under her supervision
transferring to non-supervisory positions to escape the harassment.
Finally, complainant claims that since filing his complaint, all of his
former supervisors are no longer in their positions, which he believes
indicates that the agency had concerns about their behavior.
In response, the agency states that complainant's allegations of a
contractual breach offer nothing in support of his discrimination claims
since he failed to show that employees outside his protected groups
were allowed to return to their former positions, while he was not.
Further, the agency asserts that even assuming S2 created a hostile
work environment, there was evidence in the record that S2's behavior
was directed at employees outside complainant's protected groups.
Accordingly, the agency requests that we affirm the final order.
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).
Disparate Treatment
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must
first 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 Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we concur with the AJ that the agency has articulated
legitimate, nondiscriminatory reasons for its actions.3 As to claim
(A), S1 asserts that he had to review complainant's work daily and that
complainant was constantly identified as failing in critical job elements.
Hearing Transcript (HT), S1's Testimony at 661. S1 testified that he
personally observed complainant performing his duties and complainant's
biggest problem was the amount of time it took him to complete his work.
Id. at 662. Further, S1 testified that complainant's troubles were
unrelated to his lack of a right arm; rather, complainant spent a great
deal of time socializing and was easily distracted. Id. S2 testified
that complainant received an overall average score of 3.8 out of 5.0
during his performance review, but was rated "Unacceptable" overall
because he failed in "Use of Time and Workload Management" under Critical
Element V. HT, S2's Testimony at 570-71. S2 testified that failure under
one of the Critical Elements is considered "Unacceptable." Id. at 571.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
were pretext for discrimination. We find that aside from complainant's
bare assertions, the record is devoid of any persuasive evidence that
discrimination was a factor in complainant receiving an overall rating of
"Unacceptable" in his performance appraisal. Complainant has presented
no evidence establishing that the agency's reasons are pretextual.
As to complainant's arguments on appeal, we find nothing in the record
to support a claim of disability discrimination in the agency's alleged
breach of the collective bargaining agreement. At all times, the
ultimate burden of persuasion remains with complainant to demonstrate by a
preponderance of the evidence that the agency's reasons were not the real
reasons, and that the agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
As to claim (B), complainant alleges that he was subjected to a
hostile work environment on the basis of his disability (no right arm).
To establish a prima facie case of hostile work environment, a complainant
must show that: (1) s/he is a member of a statutorily protected class;
(2) s/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.
Complainant claims that he was constantly harassed by S1, who scrutinized
everything he did. Complainant contends that it was not equitable to
hold him accountable to meet an average number of cases in an average
amount of time, since he only has one arm. S1 testified that complainant
had performance problems and had complainant not had those problems, he
would not have reviewed his work as much. HT, S1's Testimony at 659.
Further, S1 maintained that he issued complainant progress letters
documenting his performance as a means of informing complainant how he
was performing and what he needed to improve. Id. at 665-666. S1 asserts
that he advised complainant that the Dragon software was just a tool and
that if it hindered his work, he was not required to use it. Report of
Investigation (ROI), S1's Aff. at 1. Finally, S2 states that complainant
was issued the notice of proposed removal because complainant was unable
to perform his job despite management's efforts to provide him training
and the tools necessary to perform his duties. ROI, S2's Aff. at 7.
The notice was rescinded when it was discovered that it was untimely
and that complainant had not been afforded an opportunity to improve
his performance. ROI, p. 387. No further action was taken based on the
letter. Even if we assume that the alleged actions would be sufficiently
severe or pervasive to constitute a hostile work environment, there is
insufficient evidence that any of them were motivated by discriminatory
animus. Accordingly, complainant has not shown that he was subjected
to a hostile work environment on the basis of his disability.
CONCLUSION
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's decision.4
Therefore, we AFFIRM the agency's final order 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
October 30, 2009
Date
1 Complainant does not contest the partial dismissal and partial summary
judgment on appeal.
2 In its motion to dismiss, the agency requested that if the AJ did not
dismiss complainant's harassment claim, in the alternative, the claim
should be limited to acts alleged during the time period between August
31, 2004 and May 28, 2005. The record indicates that the AJ therefore
framed complainant's harassment claim to reflect the acts alleged during
that timeframe. Neither party raises this issue on appeal.
3 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.
4 We also find that the AJ's partial dismissal as to the claim (1)
and claim (3) was proper as complainant had previously withdrawn claim
(3) and the disability (no right arm) discrimination portion of claim
(1). Further, we find that summary judgment was appropriate as to the
disability (generalized anxiety disorder) portion of claim (1) and the
age and disability (generalized anxiety disorder) portions of claim (2)
as there is no genuine issue of material fact in dispute. See Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003).
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0120073626
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120073626