Thomas K. Shu, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJan 23, 2012
0120102346 (E.E.O.C. Jan. 23, 2012)

0120102346

01-23-2012

Thomas K. Shu, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.




Thomas K. Shu,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury

(Internal Revenue Service),

Agency.

Appeal No. 0120102346

Hearing No. 520-2010-00009X

Agency No. IRS-09-0064F

DECISION

On April 30, 2010, Complainant filed an appeal from the Agency’s March

31, 2010, 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.

The Commission deems the appeal timely and accepts it pursuant to 29

C.F.R. § 1614.405(a). For the following reasons, the Commission

AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge

(AJ) processed Complainant’s case in an improper manner; and (2)

whether the decision of the AJ that Complainant was not subjected to

disparate treatment or harassment based on his national origin, sex,

color, disability, age, or in reprisal for his prior protected EEO

activity is supported by substantial evidence in the record.

BACKGROUND

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

worked as a Tax Exempt and Government Entities (TEGE) Revenue Agent

at an Agency facility in Brooklyn, New York. Complainant’s direct

supervisor during the relevant time period was the Manager, TEGE, Exempt

Organizations Determinations (Manager).

In January 2008, an employee observed Complainant allegedly plugging

a personal computer into the Agency’s internal local area network

(LAN) despite having been instructed not to do so because such activity

would violate Agency policy. The employee reported this action to

the Supervisory Information Technology Specialist (IT Specialist)

who investigated the matter and forwarded her findings to the Manager.

The Manager referred the matter to the Treasury Inspector General for Tax

Administration (TIGTA), an entity tasked with investigating allegations

of administrative misconduct on the part of Internal Revenue Service

employees. In February 2008 a TIGTA Special Agent (Special Agent) began

investigating the matter. In June 2008, the Special Agent interviewed

complainant regarding the allegation that Complainant had plugged a

personal computer into the Agency’s LAN and a new allegation that

Complainant had spoken to a taxpayer in an inappropriate manner.

In August 2008, the Special Agent and another TIGTA agent investigated

a complaint referred by the Manager regarding Complainant’s alleged

excessive or inappropriate e-mail use. Complainant was accompanied at

that meeting by two union representatives. One of the representatives

left the meeting after he was asked not to answer questions posed to

Complainant, but the other representative remained throughout the meeting.

In December 2008, the Special Agent met with Complainant a third time

to investigate allegations that Complainant had disclosed taxpayer

information.1 During the interview, the Special Agent advised Complainant

that he should stop stamping documents with a note that referred to

himself as “Dr. Shu” and provided a personal e-mail address because

doing so could confuse taxpayers. The Special Agent suggested that

Complainant simply refer to himself using his official Agency title and

provide an Agency e-mail address for any future correspondence.

On December 26, 2008 and April 18, 2009, Complainant filed EEO complaints

alleging that the Agency discriminated against him on the bases of

national origin (Hawaiian), sex (male), color (dark-skinned), disability,

age (over 40), and in reprisal for prior protected EEO activity arising

under an EEO statute that was unspecified in the record when:

(1) On an unspecified date he was reported to TIGTA for inappropriate

use of his IT privileges;

(2) On or about August 4, 2008, he was denied Union representation and

detained against his will while being questioned regarding his use of

government IT privileges;

(3) On August 4, 2008, Complainant was referred to a “personality

alteration program” at his expense by his manager, causing him undue

financial harm;

(4) On unspecified dates, his manager did not approve his requests on

leave request forms;

(5) On unspecified dates, his manager assigned him aged cases and cases

in higher numbers than his counterparts;

(6) Beginning on an unspecified date, management denied his request for

transfer to another group or unit;

(7) On an unspecified date, he was told by a TIGTA investigator to cease

using his title of Doctor when speaking to taxpayers;

(8) Since February 20, 2008, and continuing, his manager identifies

Complainant as Chinese and refuses to recognize his national origin as

Hawaiian; and

(9) On February 12, 2009, management used TIGTA interrogatory techniques

on Complainant.

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation and notice of his right to

request a hearing before an AJ. Complainant timely requested a hearing,

which the AJ held on March 2, 2010. During the Agency’s presentation

of its case-in-chief, the AJ terminated the hearing proceedings due

to Complainant’s uncooperative and disruptive behavior. The AJ

subsequently determined that there was sufficient evidence in the record

to issue a ruling and issued a bench decision finding that Complainant

failed to establish that the Agency’s legitimate, non-discriminatory

reasons for its actions were a pretext for unlawful discrimination.

The AJ’s March 2, 2010, bench decision found that “the personnel

actions taken by the Agency, alleged by Complainant to be discriminatory,

were the direct result of complaints made against Complainant by

various employees, managers and Agency customers (taxpayers), and

Complainant’s inappropriate conduct.” The AJ further found that

several of Complainant’s allegations were not proven true and not

credible, including his allegations regarding the personality alteration

program, receiving older cases than his co-workers, unlawful restraint,

and denial of union representation. The Agency issued a final order

fully adopting the AJ’s finding that Complainant failed to prove that

the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant broadly argues that the AJ erred in finding no

discrimination. Complainant refutes the evidence provided by the Agency,

argues that the Agency subjected him to discrimination, and disagrees

with the AJ’s credibility determinations. Complainant also argues

that the AJ was biased during the hearing process, as evidenced by the

AJ’s unwillingness to allow him to introduce all of the witnesses he

had requested at the hearing, and unfairly ruled in favor of the Agency.2

In response, the Agency urges the Commission to affirm its final order

finding no discrimination.

STANDARD OF REVIEW

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. Nat’l Labor Relations Bd.,

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part

1614 (EEO MD-110), Chap. 9, at § VI.B. (Nov. 9, 1999).

ANALYSIS AND FINDINGS

As an initial matter, the Commission finds no evidence in the record

that the AJ processed Complainant’s case in an improper manner or

demonstrated a bias against him. The Commission's regulations afford

broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109

et seq.; EEO MD-110, Chapter 7, § III.D. Regarding Complainant’s

contention that the AJ unfairly denied his request to introduce

certain witnesses at the hearing, we find that the AJ properly denied

Complainant’s request to include witnesses because the AJ determined

that their testimony would not be relevant to the accepted claims.

We note that Complainant was permitted to call his own witnesses at the

hearing, but he opted not to examine any witnesses during presentation

of his case-in-chief. We also note that Complainant was permitted to

cross examine Agency witnesses during the hearing.

With respect to the AJ’s decision to terminate the hearing proceedings

before the Agency had completed its case-in-chief, the record reflects

that Complainant repeatedly failed to follow the AJ’s instructions,

interrupted parties and the AJ when they were speaking, and raised his

voice or exhibited otherwise intimidating behavior during the hearing.

Despite repeated warnings from the AJ that his actions would not be

tolerated, Complainant continued to be disruptive and even challenged

the AJ to end the proceedings. We find that the AJ was well within the

bounds of her discretion when she terminated the hearing proceedings due

to Complainant’s refusal to cooperate and generally disruptive behavior.

Discrimination Claims

To prevail in a disparate treatment claim absent direct evidence of

discrimination, Complainant must satisfy the three-part evidentiary

scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of

establishing a prima facie case by demonstrating that he was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. Furnco Constr. Co. v. Waters, 438

U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802

n. 13. The burden then shifts to the Agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,

Complainant bears the ultimate responsibility to prove, by a preponderance

of the evidence, that the reason proffered by the Agency was a pretext for

discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,

143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

For purposes of this decision, we assume without so finding that

Complainant established a prima facie case of national origin, sex, color,

disability, age, and reprisal discrimination.3 We find that the Agency

articulated legitimate, nondiscriminatory reasons for its actions.

The Special Agent testified at the hearing that TIGTA investigated

Complainant in 2008 after it was alleged that he improperly plugged a

personal computer into the Agency’s LAN in violation of Agency policy.

The Special Agent testified that he interviewed Complainant in August

2008 regarding an allegation that he had abused his government e-mail

privileges and confirmed that Complainant was represented by the union

at the meeting. The Special Agent further testified that in December

2008, he suggested that Complainant use his official Agency title and

work e-mail address when corresponding with taxpayers rather than his

own personal information to avoid confusing taxpayers in the future.

The Manager did not testify at the hearing, but she submitted an

affidavit into the record averring that she neither referred Complainant

to a “personality alteration program” nor suggested that he seek

psychiatric help. The Manager averred that she approved any leave slips

Complainant signed and submitted. She further averred that, although

Complainant was occasionally assigned “aged” cases, he was not

assigned cases in higher numbers than his counterparts. The Manager

indicated that she did not identify Complainant as Chinese, refuse to

recognize his national origin as Hawaiian, or use “TIGTA interrogatory

techniques” on Complainant. With respect to the transfer claim, the

Manager averred that Complainant requested a transfer in June 2008.

However, he did not indicate where he wanted to be transferred.

She responded by telling him that she was the only manager assigned

to manage employees in Brooklyn, New York who are working on Exempt

Organization Determination case, but that he was free to request

a reasonable accommodation through the Agency’s formal process,

apply for jobs in other functional areas/business units, or apply for

a hardship transfer.

Complainant now bears the burden of proving, by a preponderance of the

evidence that the Agency’s articulated reasons for its actions were

pretext for discrimination. Pretext may be shown either directly by

showing that a discriminatory reason more likely motivated the employer

or indirectly “by showing that the employer's proffered explanation

is unworthy of credence.” Burdine, 450 U.S. at 256. Rejection of the

employer’s proffered reason permits the trier of fact to “infer the

ultimate fact of intentional discrimination.” Hicks, 509 U.S. at 511.

Upon review, we find that the AJ’s determination that Complainant

failed to establish pretext is supported by substantial evidence in the

record. We find no evidence that the Agency’s actions were motivated by

discriminatory animus towards his protected classes. Although Complainant

disagrees with the testimony provided by Agency officials at the hearing

and challenges the AJ’s credibility determinations, we note that the

credibility determinations of an AJ are entitled to deference due to the

AJ's first-hand knowledge, through personal observation, of the demeanor

and conduct of the witnesses at the hearing. See Esquer v. U.S. Postal

Serv., EEOC Request No. 05960096 (Sept. 6, 1996). We do not find evidence

in the record that undermines the testimony provided by the officials

at the hearing.

Complainant places great emphasis in his appeal statement on his argument

that the AJ improperly relied upon hearsay in making her determinations.

However, the Commission notes that the rules of evidence are not to be

applied strictly in administrative proceedings before the Commission.

See 29 C.F.R. §1614.109(e). Hearsay evidence is not per se devoid of

evidentiary value. Thomas v. Dep’t of State, EEOC Appeal No. 01932717

(June 10, 1994). Here, we find it reasonable that the AJ would give

some weight to testimony regarding third-party employee reports about

Complainant's conduct, particularly given that the TIGTA investigations

were initiated based upon Complainant’s alleged misconduct.

Finally, to the extent that Complainant is alleging that he was subjected

to a hostile work environment, we find under the standards set forth in

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's

claim of hostile work environment must fail. See Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,

1994). A prima facie case of hostile work environment is precluded

based on our finding that Complainant failed to establish that any of

the actions taken by the agency were motivated by discriminatory animus

or retaliatory motive. See Oakley v. U.S. Postal Serv., EEOC Appeal

No. 01982923 (Sept. 21, 2000).

CONCLUSION

The Commission finds that the AJ’s factual findings are supported

by substantial evidence in the record. We discern no basis to disturb

the AJ’s decision. After a careful review of the record, including

arguments and evidence not specifically addressed in the decision,

the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 (S0610)

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 (Z0610)

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 23, 2012

Date

1 It is unclear from the record whether the three TIGTA investigations

resulted in any findings that Complainant violated Agency policy or

whether Complainant was disciplined for his alleged actions.

2 Complainant also raises new allegations of discrimination on appeal.

Complainant is advised to initiate contact with an EEO Counselor if he

wishes to pursue these additional allegations. The Commission will not

accept new claims raised on appeal.

3 For purposes of this decision the Commission assumes, without

so finding, that Complainant is an individual with a disability.

29 C.F.R. § 1630.2(g)(1).

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0120102346

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102346