0120101731
08-19-2010
Dennis M. O'Kane, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Dennis M. O'Kane,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120101731
Agency No. IRS-08-0867-F
DECISION
On March 18, 2010, Complainant filed an appeal from the Agency's February 16, 2010, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Examiner, GS-0592-06, at the Agency's Brookhaven Service Center facility in Holtsville, New York. Complainant's Declaration at 1. Complainant was assigned to Team 102 from July 9, 2007, through September 3, 2008. Id.
Complainant filed an EEO complaint dated November 17, 2008, alleging that the Agency discriminated against him on the bases of disability (psoriasis and other conditions) and in reprisal for prior protected EEO activity when:
1. Complainant's manager and co-workers ignored him, treated him like an outsider, made him feel unwelcome, and did not invite him to office events.
2. Complainant's manager asked him if he was taking drugs for his condition.
3. Complainant's manager suggested he move to an isolated area of the office.
4. Complainant's manager threatened to demote or dismiss him.
5. Complainant's cases were subjected to 100% case review.
6. On November 23, 2007, Complainant received an anonymous letter regarding his disability.
7. On June 25, 2008, Complainant's manager issued him a 60-day review memorandum.
8. On March 31, 2008, Complainant received his annual appraisal rating him at an unacceptable level.
On February 9, 2009, the Agency accepted issues (1) - (7) for investigation. The Agency dismissed issue (8) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant's counselor contact occurred on June 26, 2008, which was more than 45 days prior to Complainant's March 31, 2008 performance appraisal. The Agency determined issue (8) was a discrete incident. The Agency noted that when asked by an EEO Specialist why he had initiated EEO Counselor contact in a seemingly untimely manner, Complainant stated that he originally filed on November 23, 2007, but dropped his Complaint because his manager had warned him that he was in danger of being demoted or dismissed from service. The Agency noted Complainant also stated that he was under the impression that he could re-file his claim at another time. The Agency found the degree of permanency of issue (8) should have triggered Complainant's suspicion of discrimination. Moreover, the Agency stated that fear of reprisal is an insufficient justification for failing to timely contact an EEO Counselor. However, the Agency determined issue (8) would be considered as background information in relation to Complainant's harassment claim. Additionally, the Agency noted that although issue (6) appeared to be untimely, this issue was a non-discrete act determined to be part of the same allegedly unlawful practice and was, thus, accepted for investigation.
At the conclusion of the investigation on the remaining issues, 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
At the outset we address the propriety of the Agency's dismissal of issue (8), for untimely EEO Counselor contact. The record reveals that previously Complainant initiated EEO Counselor contact under contact number 087546 on November 26, 2007, following his receipt of an anonymous letter regarding his psoriasis. During the counseling period, Complainant alleged that the letter was discriminatory and claimed that management "is giving him a poor evaluation so he won't be called back from furlough." Contact Intake Report. Complainant decided not to pursue a complaint at this time and the last action on contact number 087546 was taken on January 14, 2008. We find that issue (8) concerning Complainant's March 31, 2008 appraisal is a discrete act which Complainant knew or should have know was discriminatory at the time he received the appraisal. Since Complainant did not initiate EEO Counselor contact surrounding the March 31, 2008 appraisal within 45 days of his receipt of the appraisal, we find that this claim is not separately actionable. However, this issue will be considered as relevant background evidence for determining whether Complainant was subjected to a hostile work environment.
With regard to issue (1), Complainant claimed that his co-workers ignored him, treated him like an outsider, made him feel unwelcome, and did not invite him to office events. Specifically, Complainant claimed that his co-workers did not say hello to him, would order take-out food every Friday and not ask him if he wanted to order food, and did not invite him to the Christmas party. Complainant's Declaration at 2. The record reveals that co-workers treated Complainant with courtesy and Complainant was included in team parties for birthdays and other celebrations. Declaration of Lead Tax Examining Technician at 2. Complainant was also invited to the Christmas party; however, he declined to attend. Declaration of Person X at 2. Additionally, Person Y stated that every Friday Team 102 would order take-out food and she personally went to Complainant and asked him if he wanted to order food. Declaration of Person Y at 2.
With regard to issue (2), Complainant claimed that his manager asked him if he was taking drugs for his condition. Specifically, Complainant stated that he met with Manager 1 and a union representative on August 24, 2007, and Manger 1 asked him if he was taking drugs for his condition. Manager 1 states that she did not ask Complainant if he was taking drugs for his condition; she states Complainant disclosed to her the medications he was taking. Declaration of Manger 1 at 4. The union representative states she does not recall Manager 1 asking Complainant if he took drugs for his condition. Declaration of Union Representative at 2.
With regard to issue (3), Complainant states that at the August 24, 2007 meeting, Manager 1 suggested that he move to an isolated area due to his psoriasis because his co-workers were grossed out by the skin flakes due to the psoriasis being in the air and on the carpet. Manager 1 stated that the union representative asked about Complainant moving to a different area with Team 103 which is two units away, but Manager 1 said she did not want Complainant alienated from the unit and he was to stay in the unit. Declaration of Manger 1 at 4 - 5. The union representative did not recall Manager 1 suggesting that Complainant sit in an isolated area. Declaration of Union Representative at 2. The union representative stated that Manager 1 wanted Complainant to sit with the rest of the unit because he was part of their team. Id.
With regard to issue (4), Complainant claimed that his manager threatened to demote or dismiss him during an August 24, 2007 meeting. Specifically, Complainant states that the meeting was about his psoriasis and his progress and he states that Manager 1 warned him that if his performance did not improve he would be demoted to a clerk's position or dismissed from service. Complainant's Declaration at 4. Manager 1 noted that Complainant had a performance problem and was warned that failure to improve could result in a reassignment, a proposal to remove him from service, or a reduction in grade. Declaration of Manager 1 at 5 - 6. The union representative confirmed that Manager 1 explained to Complainant that if he did not improve, he could be demoted to a lower grade or dismissed. Declaration of Union Representative at 2 - 3. The union representative stated that management is supposed to tell the employee what is expected of their performance and what will happen if their performance does not improve. Id. Moreover, the union representative noted that Manager 1 did not present this as threat, but as the outcome if Complainant did not meet acceptable standards. Id.
With regard to issue (5), Complainant claimed he has been subjected to 100% case review since beginning with the Automated Substitute for Return (ASFR) office and that he is still under 100% review with his current manager. Manager 1 explained that after new hire training and a week of on-the-job training Complainant had a work performance problem and a high rate of errors, which required 100% review to prevent erroneous information from going out to the taxpayer. Declaration of Manager 1 at 7. The record reveals that Complainant was given an additional two weeks of on-the-job training from August 13, 2007 to August 24, 2007 with another coach to work with him one on one. Report of Investigation (ROI) at 128-129. Complainant's performance did not improve after this period. Manager 1 noted that Complainant was also sent to a correspondence and error list training class on August 21 - August 22, 2007, along with co-worker Z. Declaration of Manager 1 at 9. Manager 1 noted that co-worker Z caught on right away and was working the full scope of the program while Complainant was unable to work the error lists or correspondence and was not working the full scope of the program. Manager 1 noted that co-worker Z was also on 100% review after training; however, after an additional week of training co-worker Z was taken off since she had an acceptable accuracy rate after one week. Id. at 8. The Lead Tax Examiner also reviewed Complainant's work and stated that he made many mistakes and that "he had to be put on 100% review because of his high error rate." Declaration of Lead Tax Examiner at 4. The Lead Tax Examiner noted that Complainant also received one-on-one assistance with four different coaches; however, his performance did not improve. Id.
With regard to issue (6), the record reveals that on November 23, 2007, Complainant received an anonymous letter regarding his psoriasis, which stated that employees in the office had problems with Complainant's skin condition and which included information about a new treatment for psoriasis. ROI at 32 - 33. Complainant provided a copy of this letter to Manager 2, his second level supervisor, and later to his first level supervisor, Manager 1. Manager 1 then met with Team 102, without Complainant being present, and informed then that sending this letter was unacceptable. Declaration of Manager 1 at 9.
With regard to issue (7), Complainant states that on June 25, 2008, his manager issued him a 60-day review memorandum. The record contains many memorandums and opportunity to improve letters, beginning on August 24, 2007, addressing Complainant's performance deficiencies. ROI at 126 - 164. Manager 1 stated that despite being given opportunities to succeed, including the use of several technical coaches, Complainant did not improve his performance. Complainant was given the 60-day letter since he was unable to manager his work load effectively, did not complete his time sheet correctly, did not correct errors in a timely manner, did not complete his inventory report correctly, and could not work independently. Declaration of Manager 1 at 11.
With regard to issues (1), (2), (3), (4), (5), and (7) we find Complainant has not shown that he was subjected to a hostile work environment based on his disability or in retaliation for his prior protected EEO activity.1 With regard to issue (6), we find that the incident by itself was not sufficiently severe or pervasive to constitute a hostile work environment.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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
August 19, 2010
__________________
Date
1 We do not address in this decision whether Complainant is a qualified individual with a disability.
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0120101731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101731