0220120005
07-18-2012
Nelson Del Valle, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Nelson Del Valle,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0220120005
Agency No. 20103913
DECISION
On February 10, 2010, Complainant filed an appeal from a decision by the Department of Treasury concerning his grievance filed on December 8, 2009, alleging a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Revenue Agent, GS-512-13, at the Agency's facility in Miami, Florida. On December 8, 2009, Complainant filed a grievance pursuant to the agency's Collective Bargaining Agreement alleging that the Agency subjected him to reprisal for his prior protected EEO activity when he was issued a counseling memorandum by his Territory Manager on December 8, 2009. The Agency grievance decision found no retaliation.
The Agency stated that management has received several complaints from employees in the Miami, Florida facility in which it was alleged that Complainant's behavior was discourteous and/or unprofessional in some manner. The Agency produced copies of complaints received regarding Complainant's behavior. One complaint produced concerned an incident in September 2009, when Complainant used profanity and bumped another employee. Another complaint concerned an incident on November 3, 2009, when Complainant walked towards an employee and began to yell at the employee and used profanity. A third complaint was from a co-worker stating that on October 1, 2009, as the co-worker was entering the restroom and Complainant was exiting, Complainant raised his middle finger at an employee and repeatedly called the co-worker an "asshole." Two other complaints concerned Complainant's electronic mail messages that were distributed office-wide instead of to a specific individual.
On appeal, Complainant notes that the matter was raised through the Agency's Union Contract, as outlined in Article 41 of the NTEU's contract. Complainant stated that although he grieved the matter through the contract, he did not use the Union to represent him nor request that it invoke arbitration. Complainant claims that the counseling issued to him did not afford him the opportunity to respond to the allegation. Complainant states that he believes the counseling was issued in retaliation for having filed numerous EEO complaints alleging, in part, the profiling of taxpayers.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the agency, the arbitrator, or the Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For grievant to prevail, he must first establish a prima facie case 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. 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the grievant 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission finds that Complainant failed to present evidence that more likely than not, the Agency's articulated reasons for its actions were a pretext for discrimination. The preponderance of the evidence in the record supports the Agency's reasons for issuing the notice of counseling. In reaching this conclusion, we note that Complainant presented no other evidence, aside from his own assertions, to substantiate his claim that he was subjected to discrimination.
CONCLUSION
Accordingly, 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
July 18, 2012
__________________
Date
2
02-2012-0005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220120005