Terrence A. Daniels, Complainant,v.Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionNov 23, 1999
01982710 (E.E.O.C. Nov. 23, 1999)

01982710

11-23-1999

Terrence A. Daniels, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Terrence A. Daniels, )

Complainant, ) Appeal No. 01982115; 01982710;

) 01982712; 01983153;

v. ) 01983154; 01991331;

) 01993685

Robert E. Rubin, )

Secretary, ) Agency No. TD 96-1221; 96-1297;

Department of the Treasury, ) 96-1302; 96-1307;

(Internal Revenue Service), ) 97-1052; 97-1119;

Agency. ) 97-1145; 97-1201;

) 97-1339; 97-1397

)

DECISION

Complainant timely initiated appeals from seven final agency decisions

concerning his complaints of unlawful employment discrimination on the

basis of reprisal (prior EEO activity) in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>

Complainant claims he was retaliated against when:

(1) he was denied a detail into a night-shift management position for

the 1996 filing season;

(2) he was issued a Memorandum of Alternative Discipline on March 28,

1996, for a memorandum which he wrote and management perceived as

threatening;

(3) on April 24, 1996, he was issued an official Letter of Reprimand

for the same allegedly threatening memorandum;

(4) on June 14, 1996, he received a low evaluation rating for the period

between July 1994 and April 1996;

(5) he was reassigned from the night shift effective June 23, 1996;

(6) he was charged with Absence Without Leave (�AWOL�) on October 15,

1996;

(7) he was not given the opportunity to work nights between September

15 and 20, 1996;

(8) management refused to certify him for a management-entry-level

position for the 1997 filing season;

(9) on October 17, 1996, he was issued an official Letter of Reprimand

for not timely paying his 1993 taxes;

(10) he was involuntarily reassigned from the Processing Division to

the Compliance Division; and

(11) he received a low departure evaluation rating on May 10, 1997,

and a low annual evaluation rating on June 3, 1997.

This appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decisions are AFFIRMED.

The record reveals that complainant, a Scanner Operator at the

agency's Cincinnati Service Center in Covington, Kentucky, filed

the ten above-listed formal EEO complaints with the agency, alleging

discrimination as described above. The agency accepted the complaints for

processing, and at the conclusion of each investigation, complainant was

granted thirty days to request a hearing before an EEOC Administrative

Judge or an immediate FAD from the agency. Complainant requested that

the agency issue a FAD for each complaint.

All of the FADs concluded that complainant established a prima facie

case of retaliation because complainant had engaged in the EEO process

and management was aware of this at the time of each adverse action.

The FADs then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that:

(1) complainant was not selected for the detail because the selectee

had more years of experience in the unit, a higher evaluation, better

management potential, and an earlier service computation date than

complainant;

(2) complainant received the Memorandum of Alternative Discipline

because management felt that complainant's March 5, 1996 memorandum to

his Section Chief contained threats to management as well as slanderous

and inflammatory statements;

(3) after complainant refused to accept the offer of alternative

discipline issued on March 28, 1996, management issued the Letter

of Reprimand as discipline for the statements in his March 5, 1996

memorandum;

(4) under an agreement with the union, all employees in complainant's

unit were to receive the same ratings received in their last evaluation

until sufficient data was gathered to validate new standards;

(5) complainant's detail to the night shift was temporary and at the end

of the filing season, it was determined that the night shift could only

support one Scanner Operator;

(6) after discussion with both the agency's EEO Office and General Legal

Services, management informed complainant that he would not be granted

administrative leave to pursue his federal district court case against

the agency, but that he could request annual leave;

(7) due to increased volume, management asked a manager and Scanner

Operator from the day shift to work nights for the week in question,

and the highest service computation date was used as the method for

selecting the Scanner Operator to work the night shift;

(8) complainant was not certified for a management-entry-level position

because his supervisor rated him as needing development in the necessary

focus areas;

(9) complainant was issued the Letter of Reprimand because he failed to

respond to three notices informing him that he was delinquent in paying

his 1993 income taxes and because he paid his taxes three months late;

(10) complainant's involuntary reassignment was due to his inappropriate,

intimidating and threatening behavior toward his supervisors, and was

a means of providing him a fresh start in a new branch; and

(11) complainant's departure rating was based on his performance and his

new supervisor relied on his departure rating to determine his annual

rating because complainant had only worked one month in her unit during

the rating period.

In the pretext analysis, the FADs found that complainant failed to

offer evidence demonstrating the agency's reasons for its actions were

a pretext for unlawful retaliation.

On appeal, complainant contends that in each of his complaints before

the Commission, the agency failed to timely issue a FAD within sixty

(60) days of receiving notice that complainant requested a FAD.

Complainant requests that the Commission find the agency in default for

its untimeliness. Also, complainant contends that the investigation

for appeal number 01993685 was improper in that witness statements were

taken in the form of unsworn declarations instead of sworn affidavits.

In response, while it apologies for its tardiness, the agency contends

that there is no legal authority for the Commission to issue a default

judgment for an untimely FAD. Additionally, the agency contends the

Commission's regulations at 29 C.F.R. �1614.108(b) allow the agency to

conduct an investigation in any matter that efficiently and thoroughly

addresses the matters at issue.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), Shapiro v. Social Security Admin., EEOC Request

No. 05960403 (Dec. 6, 1996), and Hochstadt v. Worcester Found. 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), the Commission finds that complainant failed to establish by

the preponderance of the evidence that he was subjected to retaliatory

disparate treatment. In most circumstances, complainant's allegations

are only supported by his assertion of retaliation and the proximity

between the agency's adverse actions and complainant's EEO activity.

Without more, we find that complainant failed to present sufficient

credible evidence rebutting the agency's articulated nondiscriminatory

reasons.

While the agency treated each of complainant's complaints as a separate

allegation of discrimination, we find that the agency should have combined

all of complainant's complaints and rendered a decision addressing

complainant's main contention, retaliatory harassment. Since the FADs

never addressed complainant's allegation of retaliatory harassment,

we will consider it in this decision.

In order to prevail on his claim of retaliatory harassment, complainant

must demonstrate that: 1) he engaged in protected activity; 2) he was

subjected to severe or pervasive harassing conduct; i.e., that he has

been subjected to more than a single incident or a group of isolated

incidents of harassing conduct<2>; and 3) the harassing conduct was based

on his participation in EEO activity. See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9.

In reviewing the evidence, the Commission finds that complainant failed to

present sufficient credible evidence establishing that he was subjected to

retaliatory harassment. We find that the allegations, taken as whole, are

not sufficiently severe or pervasive to constitute a hostile environment.

While complainant asserts that the agency's actions were harassing,

we find that the evidence supports the finding that actions in question

were based on legitimate, nondiscriminatory management concerns and not

based on complainant's participation in EEO activity. Thus, we find

that the agency's actions do not constitute harassing conduct.

As for complainant's request for default judgment, we find that the

regulations do not permit the Commission to enter default judgments

for untimely FADs. However, we remind the agency of its obligation to

timely issue FADs in the future. With regard to the investigation for

appeal number 01993685, we find nothing improper with the investigation

or the unsworn declarations. Moreover, at the end of each document,

the declarant has signed an oath affirming under the penalty of perjury

that the foregoing declaration is true and correct.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM each of the

agency's final decisions.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

November 23, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 In addition, the Commission has stated that �[t]he statutory retaliation

clauses prohibit any adverse treatment that is based on a retaliatory

motive and is reasonably likely to deter the charging party or others

from engaging in protected activity. Of course, petty slights and trivial

annoyances are not actionable, as they are not likely to deter protected

activity.� EEOC Notice No. 915.003 (May 20, 1998), Compliance Guidance

on Investigating and Analyzing Retaliation Claims.