0120091786
06-25-2009
Yves Gelin, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Yves Gelin,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091786
Agency No. IRS-08-0522-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 10, 2009 final decision 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.
During the period at issue, complainant was employed as a Revenue Agent, GS-0512-13, at the agency's Internal Revenue Service, Small Business/Self-Employed, Examination Division, Area 1, Territory 6 in White Plains, New York.
On June 2, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of sex (male) when:
1. on March 31, 2008, he was sexually harassed when his female supervisor touched his face and hair;
2. on May 23, 2008, his manager advised him that his current status (extended sick leave) required him to sign a Federal Occupation Health form after which management contacted his physician to obtain his personal medical records; and
3. on May 27, 2008, his manager appeared at his residence and requested that he relinquish his identification, pocket commission, credit card, cases, equipment and other job related items.1
The record reflects that from May 28, 2008 to January 2, 2009, complainant was on leave under the Family and Medical Leave Act (FMLA).
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). In accordance with complainant's request, the agency issued a final decision on February 10, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its February 10, 2009 final decision, the agency found no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of sex discrimination concerning claims 2 and 3. The agency further found assuming, arguendo, complainant established a prima facie case of sex discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
With regard to claim 1, the agency stated that in response to complainant's allegation that he was subjected to sexual harassment by his supervisor, management conducted an investigation. After its investigation into the matter, the agency determined that complainant's allegation of sexual harassment could not be substantiated. The agency further stated that these incidents were not severe or pervasive enough to create a hostile work environment.
Complainant's supervisor (S1) denied subjecting complainant to sexual harassment. S1 further stated "I was cleared of these charges brought against me through TIGTA."2
The record reflects that in the investigation report concerning his sexual harassment allegations, complainant was asked about S1's alleged behavior in which he answered "I don't think its sexual harassment. I think they're trying to provoke me because they think I'm crazy. They're trying to terminate me. They're corrupt. It's retribution." The record further reflects that when asked for clarification, complainant explained "that 'they' meant [S1] and IRS management in general, and that the 'retribution' was for previous complaints he had made against various IRS managers."
Regarding claim 2, S1 stated that in order to grant complainant his requested leave, she was instructed by Labor Relations to have him fill out the Federal Occupations Health form. Specifically, S1 stated "I consulted with Labor Relations and followed the instructions I received from labor relations. [Complainant] was requesting six months FMLA. I sent him the forms necessary and he signed FMLA and the FOH. He signed an authorization form which was required in order to grant him FMLA and the additional sick time."
Regarding claim 3, S1 stated that complainant sent her an e-mail "saying he was too ill to come into the office and that he could have his common-law-wife UPS his assigned cases to me or did I want to come to his residence to pick them up." S1 further stated that she contacted Labor Relations for guidance, and was instructed to go to complainant's residence "in order to pick up his ID, his pocket commission, his credit card, computer, printer and his cases, which is what I did." S1 stated that that she had her secretary call complainant to "find out what was a good time to come. I was told to come in the afternoon. My Secretary told his common-law-wife that I would be coming with [named union representative]." S1 stated that at that time she made the trip to complainant's residence, his sick leave "was not yet approved. In addition, I was instructed by labor relations to do so."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Harassment
It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Mentor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his sex; (3) that the harassment complained of was based on his sex; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). 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).
The agency's investigation into complainant's allegations did not disclose any evidence of sexual harassment by S1. Under these circumstances, we find that complainant failed to carry his burden of persuasion in establishing that he was sexually harassed by S1. Moreover, we find that complainant's vague and generalized assertion that S1 subjected him to sexual harassment is not sufficiently severe or pervasive to constitute harassment or a hostile work environment.
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence does not establish that discrimination occurred.
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
June 25, 2009
__________________
Date
1 The record reflects that claims 2 and 3 were later amended to the instant complaint.
2 TIGTA is an acronym for Treasury Inspector General for Tax Administration.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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