0120100370
06-13-2012
Melvin M. Mitchell, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.
Melvin M. Mitchell,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service Office of Chief Counsel),
Agency.
Appeal No. 0120100370
Agency No. IRS-08-0451-F
DECISION
Complainant filed an appeal with this Commission concerning his complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as the Deputy Associate Chief Information Officer (ACIO) at the Agency's Modernization, Information Technology Services (MITS), Application Development Division, in Lanham, Maryland. Complainant sought counseling and subsequently filed a formal complaint.
Complainant alleged that he was subjected to harassment on the bases of race (African-American), age (over 40), and in reprisal for prior EEO activity when:
1. On April 8, 2008, Complainant received an official letter of reprimand for conduct unbecoming a Senior Executive Service (SES) manager as the result of a Treasury Inspector General for Tax Administration (TIGTA) investigation.
2. On an unspecified date, Complainant was not considered for a Presidential Rank Award and the associated monetary bonus.
3. On unspecified dates, management did not consider and/or select Complainant for several Senior Tier Executive-level positions for which Complainant applied for through the Executive Succession Planning.
At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested an immediate final decision from the Agency on the merits of his complaint.
On October 20, 2009, the Agency issued a decision finding no discrimination. Thereafter, Complainant filed the instant appeal.
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 EEOC Management Directive 110, Chapter 9, � VI.A. November 9, 1999) (explaining that 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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Chief Information Officer (CIO) stated that Complainant was issued the letter of reprimand because Complainant engaged in behavior that was unbecoming a member of the Senior Executive Service. The CIO asserted that Complainant: (1) failed to confirm his authority to respond on behalf of the IRS with regard to the unemployment compensation claimed filed by a former IRS employee; (2) failed to verify the accuracy of the information he provided to the State of Maryland, Department of Labor, Licensing, and Regulation, with respect to the former IRS employee's claim; and (3) failed to recuse himself from any and all involvement in matters pertaining to the former IRS employee unemployment compensation claim due to their friendship at the time of her separation. The CIO said that the letter of reprimand was discussed with the Former Deputy Commissioner of Operations Support (Deputy) and labor relations. The CIO denied that Complainant's race, age, or prior EEO activity had an impact on the issuance of this letter.
As to claim 2, the CIO stated that he knows that Complainant was considered for the award. The CIO said that he told the Deputy that he agreed with the recommendation for Complainant's consideration. The CIO said that Complainant's race, age, and previous EEO activity did not have an impact on his consideration for this award. The Deputy stated that he supported nominating Complainant for the award. The Deputy said that he was told that it was IRS policy not to nominate someone for this award if the person was being investigated by TIGTA for possible misconduct. The Deputy asserted that if the person was cleared the following year, then he could be nominated. The Deputy claimed that Complainant's race, age, and previous EEO activity had no bearing on the non-nomination.
With respect to claim 3, we note that Complainant did not identify specific positions for which he was not selected. The CIO said that the selections for the Executive Succession Planning program were based on the recommendation of the MITS Executive Resources Board (ERB). The CIO said that in the past two years he had not forwarded Complainant's name to the MITS or Service-Wide ERB for possible selection to one of his target positions because Complainant was never the best qualified for any of the Deputy Chief Information Officer (DCIO) or ACIO positions. According to the CIO, only two of the seven positions Complainant listed in his Succession Plan were Tier III, Senior Leader positions. The other five positions were Tier II positions, which were the same level as the Deputy ACIO, Application Development position that Complainant held.
Regarding the first Tier III position, the CIO stated that selectee A was the best qualified for the Deputy CIO of Operations position based on selectee A's experience in the Operations Division. Regarding the second Tier III position, the CIO asserted that selectee B was the best qualified candidate for the Deputy CIO of Strategy/Modernization position because of selectee B's private sector modernization experience.
As to the claim of harassment, the Agency found that the prima facie case of harassment was precluded based on their determination that management actions were not motivated by discriminatory animus towards Complainant's age, race, or based on reprisal for his prior EEO activity.
After a careful review of the record and contentions on appeal, the Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant failed to show that his qualifications for the several Senior Tier Executive-level positions were plainly superior to the selectees' qualifications or that the Agency's actions were motivated by discrimination. Moreover, the Commission finds that Complainant has failed to show by a preponderance of the evidence that he was subjected to discrimination on the bases of race, age, or reprisal. Furthermore, Complainant has failed to show that he was subjected to a hostile work environment because he has not shown that any incidents were motivated by discrimination or in reprisal for prior protected activity.
CONCLUSION
The Agency's 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
June 13, 2012
__________________
Date
2
0120100370
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100370