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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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