0120120956
05-11-2012
Harvey C. Yong, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Harvey C. Yong,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120120956
Agency No. IRS-11-0282-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 6, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On March 15, 2010, Complainant was hired as an Internal Revenue Agent (Fuel Compliance Agent (FCA)), GS-0512-9, at the Agency's Excise Specialty Tax Programs, Small Business/Self Employed facility in San Jose, California, subject to a one-year probationary period.
On May 3, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination on the basis of race (Asian) when:
effective January 4, 2011, he was terminated during his probationary period.
After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 6, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its December 6, 2011 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the Agency terminated Complainant during his probationary period for failure to demonstrate acceptable performance and conduct.
Complainant's first-level supervisor (S1) recommended that Complainant be terminated during his probationary period for unsatisfactory performance. S1 stated that Complainant's On-the-Job Training (OJT) was extended for one month because of the problems Complainant encountered in training. S1 stated that during a November 29, 2010 group meeting with other Fuel Compliance Agents (FCA), Complainant refused to accept his determination upholding the group's decision on whether a taxpayer was required to report certain information on a 720-TO form in February 2010 and escalated the issue to the Joint Operations Center for a recommendation on how to proceed. S1 further stated that he found Complainant's handling of the 720-TO situation indicated his inability to effectively and independently use reference and research tools.
S1 stated that on December 21, 2010, he issued Complainant a performance review indicating unsatisfactory handling of two onsite client inspections on December 16, 2010. In the performance review, S1 placed Complainant on notice that he showed ineffective and inefficient communication with taxpayers with respect to the purpose and scheduling of their meeting; and the interview skills Complainant employed with taxpayers. The record reflects that S1 also noted that Complainant did not plan his interview so as to efficiently streamline the process, resulting in a taxpayer having to make several trips to obtain information that could have been obtained at once; and an onsite investigation encompassing more detail than necessary for that particular site. Finally, S1 stated that Complainant's race was not a factor in management's determination to terminate Complainant's employment during his probationary period.
Complainant's second-level supervisor (S2) was the deciding official to terminate Complainant during his probationary period. S2 stated that Complainant was terminated for unacceptable performance "even after we extended his on-the-job training phase. Specifically, S2 determined that Complainant was unable to master the Critical Job Elements related to Customer Satisfaction (Knowledge of Tax Law), Business Results (Quality Researching and Research Tools), and Customer Satisfaction (Oral and Written Communications)." S2 also stated that Complainant's main problem was "his refusal to follow the directives of management and his training coach."
S2 stated that Complainant was not treated differently because of his race and that he "got the same training and opportunities as the others in the group that came on when he did and those that came on the prior year. When it was determined he was struggling, management provided him additional on-the-job instruction to try to help him reach the full performance level." S2 stated that during the relevant time, a named probationary employee was terminated for performance issues.
With respect to Complainant's assertion that he did "more" of something that other individuals in the group, S1 stated that the program Complainant worked in "does not measure employees on 'how many' of something they accomplished or on how many dollars were assessed but rather on a combination of the quality of their work, the correct planning to do the type of work efficiently, and doing the work in the proper ways while providing customer satisfaction on the job. The use of quantity data to compare employees is prohibited in our organization." Moreover, S1 stated that she did not discriminate against Complainant based on his race.
Complainant's trainer (T1) for the On-the-Job Training (OJT) stated that he kept advising Complainant to review the FCA Help guide "because that had lots of valuable information that would help him prepare for his reviews. Unfortunately, he never seemed to take that advice because he kept asking the same questions over and over. By the time we met for his third assignment (720-TO review), I fully expected him to have all his pre-planning finished, and to my dismay, he had only cleaned up the excel spreadsheet (ExStars data) by eliminating columns that were not needed.1 I had planned on dedicating most of that day to helping him complete work papers for his previous cases. We ended up dedicating a significant portion of the day prepping for the next day's 720-TO review." T1 stated that he stressed to Complainant the importance of pre-planning for a 720-TO review "because this is where you find any issues that need to be brought up with a taxpayer."
T1 recommended that Complainant's OJT be extended since he was not prepared to conduct work particularly 720-TO reviews on his own and had difficulty using and applying reference materials, pre-planning, inventory reconciliation; constructing a case file and closing a case. The record reflects that on October 10, 2010, Complainant's OJT was extended for approximately one month because of problems he encountered in training. The record further reflects that on November 3, 2010, S1 determined T1 had done all he could to train Complainant.
One of the Fuel Compliance Agents (A1) stated that during the relevant time, he detailed as an OJI Coordinator during Complainant's Phase II OJT which last six months. A1 stated that after Complainant completed his extended OJT, he "still did not believe Complainant could perform the job of FCA at a fully successful level. Complainant did not take constructive criticism well and did not listen to the advice given by OJI to help him perform at a fully successful level." For instance, A1 stated that after an OJI demonstrated how to reconcile inventory, Complainant "indicated that his way was better, even though it led to discrepancy and did not satisfactorily reconcile inventory."
Further, A1 stated that during role playing "while asking an uncooperative taxpayer for information, complainant got frustrated and responded with comments asking taxpayer why he is 'anti-government.' This comment is uncalled for and extremely unprofessional." A1 stated that Complainant never reached out to him with questions or concerns at any time during his training.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency's final decision "showed extreme prejudice/bias against him and had intentionally ignored important facts of the case that clearly proved that discrimination occurred." Complainant further argues that he was given "inadequate and unfair" training during the Phase II 720-TO OJT. Finally, Complainant argues that from November 2010 to December 2010, S1 intentionally overloaded him with eight terminal inspectors which "severely impact[ed] his performance in completing his remaining two 720-TO hard case files."
ANALYSIS AND FINDINGS
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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination. After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 11, 2012
__________________
Date
1 The record reflects that a 720-TO be a report submitted by taxpayers who deal with fuel, and reflects monthly receipts and disbursement of liquid fuel products.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120956
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120956
7
0120120956