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

Equal Employment Opportunity CommissionMar 14, 2012
0120111739 (E.E.O.C. Mar. 14, 2012)

0120111739

03-14-2012

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




_______________,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury

(Internal Revenue Service),

Agency.

Appeal No. 0120111739

Hearing No. 570-2010-00512X

Agency No. IRS-09-0775F

DECISION

Complainant filed an appeal from the Agency’s January 20, 2011 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. and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. § 791 et seq. For the following reasons, the

Commission AFFIRMS the Agency’s Final Order.

BACKGROUND

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

probationary Revenue Agent at the Agency’s Small Business/Self Employed

facility in Fairfax, Virginia. On August 17, 2009, Complainant filed

an EEO complaint alleging that the Agency discriminated against him on

the bases of age (55),1 sex (male), disability (multiple disabilities),

and in reprisal for prior protected activity when:

On May 22, 2009, Complainant was forced to resign, in lieu of termination,

from his position as a Revenue Agent, GS-0512-07, with the Internal

Revenue Service.

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 EEOC Administrative Judge (AJ). Complainant

requested a hearing. Over Complainant's objections, the AJ assigned

to the case granted the Agency’s July 16, 2010 motion for a decision

without a hearing and issued a decision without a hearing finding no

discrimination on January 12, 2011.

In his Decision, the AJ found no dispute that Complainant is an

individual with a disability and that Complainant was hired into the

Revenue Agent position under Schedule A hiring authority. Further, the

AJ found no dispute that Complainant was serving a probationary period at

the time he resigned from the Agency. The AJ considered that during a

four-day orientation program, Complainant and other new Revenue Agents

were directed to stay at a designated hotel in Richmond, Virginia.

Complainant encountered a number of difficulties during his stay at

the hotel. Specifically, Complainant arrived on the first day, prior

to the hotel’s check-in time of 3 pm, and was informed that his room

was not ready. Complainant was also denied the use of the hotel’s

valet parking and courtesy shuttle to the Agency’s training site.

Complainant ultimately drove himself to the training site on the first

day, but arrived two hours late after he became lost in the hotel’s

parking facility.

Thereafter, Complainant complained to the hotel’s management that

he had been treated poorly that morning and further that his room,

when he did check in, was not clean. Eyewitness accounts vary

regarding Complainant’s conduct and the content of conversations

between Complainant and the hotel’s employees, but ultimately, the

Agency investigated a complaint that Complainant had threatened the

hotel’s employees with an audit of their tax returns because of the

poor hospitality he believed he had been shown by the hotel during

his stay. The AJ found that Complainant admitted to his Territory

Manager and second-level supervisor, (S2) that he said things he should

not have said to the hotel staff. Based on the results of the internal

investigation, S2 decided to remove Complainant from his probationary

position and thereafter, Complainant was provided with the opportunity

to resign instead of being removed. Complainant resigned on May 22, 2009.

The AJ found no dispute regarding the material facts of the complaint

warranting a hearing. Specifically, the AJ noted that S2 proposed

Complainant’s removal based on the seriousness of the conduct in

which Complainant engaged which compromised the integrity of the

Agency. The AJ found no evidence that the Agency’s reasons for

removing Complainant were a pretext to mask discrimination. The AJ

found Complainant’s allegations were unsupported by the evidence.

The AJ found that Complainant did not establish a prima facie case of

constructive discharge because he failed to show that he was subjected to

working conditions that became so intolerable, based on a protected basis,

that a reasonable person would have no choice, but to resign. The AJ

found no evidence that the Agency’s decision to remove Complainant

was motivated by Complainant’s sex, disability, or in reprisal for

engaging in prior protected activity.

The Agency subsequently issued a Final Order adopting the AJ’s finding

that Complainant failed to prove that the Agency subjected him to

discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive legal

and evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court’s

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party’s favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,

an AJ should not rule in favor of one party without holding a hearing

unless he or she ensures that the party opposing the ruling is given

(1) ample notice of the proposal to issue a decision without a hearing,

(2) a comprehensive statement of the allegedly undisputed material facts,

(3) the opportunity to respond to such a statement, and (4) the chance

to engage in discovery before responding, if necessary. According to

the Supreme Court, Rule 56 itself precludes summary judgment “where the

[party opposing summary judgment] has not had the opportunity to discover

information that is essential to his opposition.” Anderson, 477 U.S. at

250. In the hearing context, this means that the administrative judge

must enable the parties to engage in the amount of discovery necessary to

properly respond to any motion for a decision without a hearing. Cf. 29

C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could

order discovery, if necessary, after receiving an opposition to a motion

for a decision without a hearing).

In the instant case, we find the AJ properly issued his decision without

a hearing. We find no dispute that Complainant is an individual with a

disability and that the Agency was aware of Complainant’s disability

at the time of the events described in the complaint. We further find

no dispute that Complainant had requested accommodations to permit him

to participate in the orientation programs at Richmond, Virginia and

accordingly, Complainant engaged in protected activity. We will assume,

without finding, that Complainant is an individual with a disability.

We concur with the AJ that the undisputed evidence shows that S2’s

decision to remove Complainant from his probationary position was

prompted by reports that Complainant had engaged in misconduct during

the orientation program in Richmond, Virginia. We find, as did the AJ,

no objective evidence that Complainant’s removal was motivated by

Complainant’s disability or his sex, and no evidence that Complainant

was removed in reprisal for prior protected activity.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s’

Final Order, finding no discrimination.

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

March 14, 2012

__________________

Date

1 Complainant’s age claim was withdrawn subsequent to the filing of

Complainant’s complaint.

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0120111739

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120111739