0120140154
08-25-2016
Zachariah W.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachariah W.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120140154
Hearing No. 480-2011-00570X
480-2011-00681X
Agency No. IRS-10-0442-F
IRS-10-0631-F
IRS-10-0700-F
DECISION
On October 24, 2013, Complainant filed an appeal from the Agency's September 25, 2013, 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., 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 decision.
ISSUES PRESENTED
Whether the Agency discriminated against, and subjected Complainant to a hostile work environment, based on disability, and in reprisal for prior EEO activity when it issued him a "biased" performance appraisal; did not select him for multiple positions; ignored his requests for reasonable accommodation; and engaged in unwelcome behavior.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent at the Agency's Small Business/Self-Employed division in El Monte, California. Complainant alleged that sometime between 2006, and 2009, his first line supervisor (S1) stated to him, "if you want to fight, we will fight." Complainant also alleged that S1 took a coworker (C1) aside, and that during a meeting, S1 "made an inference" that she told C1 not to talk to Complainant, or acknowledge his jokes in 2006.
In February 2008, Complainant's second line supervisor (S2) held a meeting with the Revenue Agents. During the meeting, she discussed a new work plan and while providing examples, stated "[Complainant] closed his one case for the year." In February 2009, Complainant claimed that he spoke with an acting manager who stated that it would be easy to provide him with a reasonable accommodation. Complainant also claimed that when he spoke with S1 about a reasonable accommodation, she ignored his requests.
On or about June 4, 2009, Complainant, claiming that he was on workers' compensation, did not come to work. S1 requested that he provide medical documentation to support his claim. S1 stated that when Complainant did not provide the information, she recorded him as absent without leave (AWOL). After Complainant provided medical documentation, the AWOL charge was rescinded. In June 2009, S1 gave Complainant a performance appraisal of "Fully Successful," and in November 2009, Complainant was given a mid-year performance rating of "Fully Successful."
In November 2009, Complainant's obtained a new first line supervisor (S3). On January 20, 2010, Complainant sent an email to S3, stating that he was in the process of getting medical documentation to support his reasonable accommodation request. Complainant copied an Agency Reasonable Accommodation Coordinator (RAC1) on the email, who responded that Complainant needed to complete a form for his request, and provide a medical release.
On January 25, 2010, Complainant saw an Operational Review Report from S2 directed to S3. The report showed that 34% of the workgroup's overage cases were attributed to Complainant.
On or about February 27, 2010, Complainant learned that he was not selected for an Economist position; no one was selected for this position. Complainant applied for a Valuation Specialist position, and was interviewed on March 24, 2010. Complainant learned that he was not selected on or about April 8, 2010. This vacancy was not filled due to a lack of sufficient number of applicants. On or about April 12, 2010, Complainant learned that he was not selected for a position as an Internal Revenue Agent (Team Member). On or about July 19, 2010, Complainant was not selected as a Special Enforcement Program Revenue Agent; two selections were made for this position.
In June 2010, Complainant received his performance appraisal of "Exceeds Fully Successful." On July 7, 2010, S2 was asked to provide employees for a four day detail assignment as a Corporate Classifier. S2 was to provide the names as soon as possible, but no later than July 29, 2010. S2 forwarded the email to S3, who then forwarded the message to Complainant's team on July 19, 2010. On July 20, 2010, S2 emailed her managers stating that she already had one volunteer, and was looking for a second volunteer, by the close of business on July 27, 2010. S3 did not forward this message to his team. Complainant emailed his interest on July 28, 2010, and on August 23, 2010, he learned that he was not selected for this detail assignment.
On November 18, 2010, Complainant sent an email to his manager stating that he would like to request a reasonable accommodation. Complainant's email was referred to another Reasonable Accommodation Coordinator (RAC2). Between November 19, 2010, and January 28, 2011, the RAC2 sent Complainant fifteen emails to try to set up a meeting to discuss his request. They scheduled two separate meetings, which Complainant cancelled. On January 28, 2011, Complainant emailed the RAC2 to rescind his request.
On July 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (depression, lack of concentration, diminished thinking and learning skills, insomnia, no appetite, irregular gait, nerve damage in right arm/wrist, poor eyesight, and weak immune system), and in reprisal for prior protected EEO activity in 2007 and 2008. Complainant filed two additional EEO complaints, and his complaints were consolidated. The following claims were accepted for investigation:
1. On or about June 4, 2009, S1 required him to provide confidential medical documentation, and subsequently charged him with AWOL in July 2009 when he failed to comply with the request;
2. In or around May 2009, November 2009, and May 2010, respectively, S1 and S2 issued him "biased" performance reviews based on a report which inappropriately associated him with responsibility for a large percentage of overage cases;2
3. On or about February 27, 2010, he was not selected for the position of Economist, GS-0110-11/12/13. under Vacancy Announcement No. 60-61-LMB0540B;
4. On or about April 8, 2010, he was not selected for the position of Valuation Specialist, under Vacancy Announcement No. 60-61-LMB0582B;
5. On or about April 12, 2010, he was not selected for the position of Internal Revenue Agent (Team Member), GS-512-12/13, under Vacancy Announcement No. 10PH4-LMX027951212, 12/13-FXP;
6. On or about July 19, 2010, he was not selected for the position of Special Enforcement Program Revenue Agent, GS-512-12, under Vacancy Announcement No. 10-PH1-SBB0435-0512-12-TK (Col 50-30-SBC0435C);
7. During the week of August 23, 2010, he was not selected for the detail position of Corporate Classifier;
8. Since February 2009, management officials ignored his requests for reasonable accommodation of his disability;
9. In or around the period between 2006 and 2009, management officials engaged in the following unwelcome behavior: in approximately 2006, told one of Complainant's coworkers not to acknowledge his jokes or sense of humor; during a February 2008 group meeting, stated that "[Complainant] closed his one case for the year;" and on one occasion occurring sometime between 2006 to 2009, stated that "if [Complainant] wanted to fight, we will" related to reviews and rebuttals; and
10. Since 2007, management officials failed to address issues of concern as identified by employees through the Employee Survey.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ dismissed the hearing request on the grounds that Complainant did not file his Pre-Hearing Report by the deadline. The AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant failed to prove that his managers subjected him to discrimination as alleged.
As an initial matter, the Agency affirmed the dismissal of the following claims for untimely contact with an EEO counselor:
11. On unspecified dates in 2006, management officials did not assist Complainant in the completion or execution of a Career Learning Plan;
12. On unspecified dates since 2004, he was denied opportunities to act as a "Coach;" and
13. From approximately February through June 2009, management officials assigned him a greater number of cases than appropriate.
The Agency noted that while these incidents were untimely, they would be considered as background information for his harassment allegation. The Agency also affirmed the dismissal of the claim that Complainant was harassed and retaliated against when an agent from the Treasury Inspector General for Tax Administration called and questioned him in an "aggressive, abrasive, and inappropriate tone," in an attempt frame him for misconduct (Claim 14). The Agency determined that Complainant had failed to state a claim, and that the EEO process was not the correct forum for his complaint.
In the final decision, the Agency dismissed claim 1 for untimely EEO contact. While Complainant argued that he was not aware that the AWOL charge was based on a discriminatory motive until he read a union memorandum on confidentiality of medical records on April 13, 2010, the Agency found that ignorance of the law did not justify tolling the time for EEO contact. Additionally, the Agency found that Complainant's allegation that he was charged AWOL because his managers interfered with his workers' compensation claim was a collateral attack on the workers' compensation process. Accordingly, the Agency dismissed claim 1, but included it as background information for the hostile work environment claim. For claim 2, the Agency dismissed the May and November 2009 performance appraisals as discrete acts for untimely EEO contact, but considered them as background for the hostile work environment allegation. The Agency also dismissed claim 10 for failure to state a claim because it was a generalized grievance that failed to specify an injury to Complainant.
The Agency noted that Complainant had not shown any evidence to infer discrimination based on disability, and in reprisal for prior EEO activity. The Agency then found that the management officials articulated legitimate, non-discriminatory reasons for their actions. For claim 2, Complainant alleged that his May/June 2010 performance appraisal was biased because his name was improperly noted on the Operational Review Report. He did not contest that 34% of the overage cases were his, but argued that his name should not have been identified in the report. S3 stated that Complainant was rated based on his critical job elements. The Agency found that Complainant had not shown that having his name associated with overage cases influenced his performance appraisal, and as such, he was not discriminated against or retaliated against when he received his appraisal.
For claim 3, a Human Resources Specialist (HRS1) stated that she never met Complainant and was unaware of his disability or prior EEO activity. The HRS1 stated that Complainant was not selected because he did not have the relevant experience for the position, and was found ineligible. In regards to claim 4, one of the Team Managers (TM) who interviewed Complainant stated that he did not select him because he had no valuation experience, did not know what the job entailed, and did no research about the job. For claim 5, another Human Resources Specialist (HRS2) stated that Complainant was not selected because he was not certified. The HRS2 stated that Complainant was in the "C" category, and that only candidates in the "A" category were referred. In regards to claim 6, the selecting official (SO) stated that he did not conduct interviews, but selected the top two scoring candidates from California. For claim 7, S2 denied playing any role in the selection process for the detail assignment.
In regards to claim 8, the Agency found that Complainant did not specify his requested reasonable accommodation; did not show that he requested a specific accommodation; did not describe his limitations; and did not show that he was denied a reasonable accommodation. For claim 9, S1 stated that she had no recollection of telling Complainant's coworker not to acknowledge Complainant's jokes; or of telling Complainant that she was willing to fight him. S3 stated that she recalled making the statement, but that she used Complainant's name when illustrating a change in the work plan, and was not singling him out to comment on his work ethic.
The Agency concluded that Complainant had not shown any evidence to conclude that the Agency discriminated against him based on disability, or in reprisal for prior EEO activity. Additionally, in regards to Complainant's hostile work environment claim, the Agency found that Complainant had not shown that he was subjected to conduct sufficiently severe or pervasive to rise to the level of hostile work environment.
Complainant filed the instant appeal, but did not file a brief in support of his appeal. The Agency filed an opposition brief on December 4, 2013, asking that the Commission affirms its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). We note that on appeal, Complainant did not contest the Agency's dismissal of claims 1, part of 2, and 10 through 14; as such, we AFFIRM their dismissal and will not address these issues as discrete acts in this decision.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 2, S3 stated that he did not give Complainant a "biased" performance appraisal in June 2010, and that he evaluated him based on his critical job elements. S3 also stated that the Operational Review Report was sent to him by S2 to highlight improvement opportunities for his workgroup.
For claim 3, the HRS1 stated that no certificate of eligible candidates was issued because only Complainant and one other applicant applied, and both were found to be ineligible for the position because they lacked the necessary experience. In regards to claim 4, the TM stated that during the interview, Complainant showed that he had no valuation experience, did not know what the job entailed, and did not research the position. For claim 5, the HRS2 stated that Complainant was not placed on the certificate of eligible candidates because he received a rating of "Category C" based upon his responses to the application. The HRS2 stated that only "Category A" candidates were referred to the selecting official. In response to claim 6, the SO stated that he did not conduct interviews, and selected two individuals for the position. Based on the applicants' skills, knowledge and experience, the SO selected the top two candidates from California. For claim 7, S2 stated that she was not aware that Complainant had volunteered for the detail assignment, and S3 stated that he was not involved in the selection of the detailees.
We find that Complainant has not shown that the proffered reasons were pretext for discrimination. In nonselection cases, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10m Cir. 1981); Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). In this case, we note that no selections were made for the vacancy announcements in claims 3, and 4. For claims 5 and 6, Complainant has not presented any evidence showing that his qualifications were plainly superior to those selected for the positions. Additionally, Complainant has only made bare assertions that the management officials discriminated against him based on his disability, and in reprisal for prior EEO activity, which are insufficient to prove pretext or that their actions were discriminatory.
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
For claim 8, the record contains many emails from the RAC2 to Complainant and his representative in an attempt to discuss his request for a reasonable accommodation. There is no indication that Complainant completed the form to request a reasonable accommodation, or provided any medical documentation in support of his request. Rather, the record shows that Complainant rescinded his request in January 2011. Additionally, while the record shows that S1 was aware of, and involved in, Complainant's request for workers' compensation, there is no evidence that Complainant informed her about his request for a reasonable accommodation. As such, we find that Complainant has not shown that the Agency discriminated against him based on disability when it failed to provide him with a reasonable accommodation because Complainant subsequently withdrew his request during the interactive process.
Harassment
As discussed above, Complainant did not establish discrimination on his protected bases for claims 2 (2010 performance evaluation) through 8, and we conclude that a claim of harassment is precluded by our finding that Complainant failed to establish that any of these actions taken by the agency were motivated by his protected bases. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). For claims 1, 2 (2009 performance evaluations), 9, 11, 12, 13, and 14, even assuming the incidents occurred as alleged, we find that they were not sufficiently severe or pervasive to alter the conditions of Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). As such, we find that Complainant has not shown that the Agency subjected him to harassment based on disability, or in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding that Complainant has not shown that the Agency discriminated against, or subjected him to a hostile work environment, based on disability, or in reprisal for prior EEO activity when it issued him a "biased" performance appraisal; did not select him for multiple positions; ignored his requests for reasonable accommodation; and engaged in unwelcome behavior.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___8/25/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 While Complainant stated that he received his 2010 performance appraisal in May, the record shows that it was issued to him in June 2010.
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