0120102346
01-23-2012
Thomas K. Shu, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Thomas K. Shu,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120102346
Hearing No. 520-2010-00009X
Agency No. IRS-09-0064F
DECISION
On April 30, 2010, Complainant filed an appeal from the Agency’s March
31, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge
(AJ) processed Complainant’s case in an improper manner; and (2)
whether the decision of the AJ that Complainant was not subjected to
disparate treatment or harassment based on his national origin, sex,
color, disability, age, or in reprisal for his prior protected EEO
activity is supported by substantial evidence in the record.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as a Tax Exempt and Government Entities (TEGE) Revenue Agent
at an Agency facility in Brooklyn, New York. Complainant’s direct
supervisor during the relevant time period was the Manager, TEGE, Exempt
Organizations Determinations (Manager).
In January 2008, an employee observed Complainant allegedly plugging
a personal computer into the Agency’s internal local area network
(LAN) despite having been instructed not to do so because such activity
would violate Agency policy. The employee reported this action to
the Supervisory Information Technology Specialist (IT Specialist)
who investigated the matter and forwarded her findings to the Manager.
The Manager referred the matter to the Treasury Inspector General for Tax
Administration (TIGTA), an entity tasked with investigating allegations
of administrative misconduct on the part of Internal Revenue Service
employees. In February 2008 a TIGTA Special Agent (Special Agent) began
investigating the matter. In June 2008, the Special Agent interviewed
complainant regarding the allegation that Complainant had plugged a
personal computer into the Agency’s LAN and a new allegation that
Complainant had spoken to a taxpayer in an inappropriate manner.
In August 2008, the Special Agent and another TIGTA agent investigated
a complaint referred by the Manager regarding Complainant’s alleged
excessive or inappropriate e-mail use. Complainant was accompanied at
that meeting by two union representatives. One of the representatives
left the meeting after he was asked not to answer questions posed to
Complainant, but the other representative remained throughout the meeting.
In December 2008, the Special Agent met with Complainant a third time
to investigate allegations that Complainant had disclosed taxpayer
information.1 During the interview, the Special Agent advised Complainant
that he should stop stamping documents with a note that referred to
himself as “Dr. Shu” and provided a personal e-mail address because
doing so could confuse taxpayers. The Special Agent suggested that
Complainant simply refer to himself using his official Agency title and
provide an Agency e-mail address for any future correspondence.
On December 26, 2008 and April 18, 2009, Complainant filed EEO complaints
alleging that the Agency discriminated against him on the bases of
national origin (Hawaiian), sex (male), color (dark-skinned), disability,
age (over 40), and in reprisal for prior protected EEO activity arising
under an EEO statute that was unspecified in the record when:
(1) On an unspecified date he was reported to TIGTA for inappropriate
use of his IT privileges;
(2) On or about August 4, 2008, he was denied Union representation and
detained against his will while being questioned regarding his use of
government IT privileges;
(3) On August 4, 2008, Complainant was referred to a “personality
alteration program” at his expense by his manager, causing him undue
financial harm;
(4) On unspecified dates, his manager did not approve his requests on
leave request forms;
(5) On unspecified dates, his manager assigned him aged cases and cases
in higher numbers than his counterparts;
(6) Beginning on an unspecified date, management denied his request for
transfer to another group or unit;
(7) On an unspecified date, he was told by a TIGTA investigator to cease
using his title of Doctor when speaking to taxpayers;
(8) Since February 20, 2008, and continuing, his manager identifies
Complainant as Chinese and refuses to recognize his national origin as
Hawaiian; and
(9) On February 12, 2009, management used TIGTA interrogatory techniques
on Complainant.
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 AJ. Complainant timely requested a hearing,
which the AJ held on March 2, 2010. During the Agency’s presentation
of its case-in-chief, the AJ terminated the hearing proceedings due
to Complainant’s uncooperative and disruptive behavior. The AJ
subsequently determined that there was sufficient evidence in the record
to issue a ruling and issued a bench decision finding that Complainant
failed to establish that the Agency’s legitimate, non-discriminatory
reasons for its actions were a pretext for unlawful discrimination.
The AJ’s March 2, 2010, bench decision found that “the personnel
actions taken by the Agency, alleged by Complainant to be discriminatory,
were the direct result of complaints made against Complainant by
various employees, managers and Agency customers (taxpayers), and
Complainant’s inappropriate conduct.” The AJ further found that
several of Complainant’s allegations were not proven true and not
credible, including his allegations regarding the personality alteration
program, receiving older cases than his co-workers, unlawful restraint,
and denial of union representation. The Agency issued a final order
fully adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant broadly argues that the AJ erred in finding no
discrimination. Complainant refutes the evidence provided by the Agency,
argues that the Agency subjected him to discrimination, and disagrees
with the AJ’s credibility determinations. Complainant also argues
that the AJ was biased during the hearing process, as evidenced by the
AJ’s unwillingness to allow him to introduce all of the witnesses he
had requested at the hearing, and unfairly ruled in favor of the Agency.2
In response, the Agency urges the Commission to affirm its final order
finding no discrimination.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd.,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9, at § VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds no evidence in the record
that the AJ processed Complainant’s case in an improper manner or
demonstrated a bias against him. The Commission's regulations afford
broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109
et seq.; EEO MD-110, Chapter 7, § III.D. Regarding Complainant’s
contention that the AJ unfairly denied his request to introduce
certain witnesses at the hearing, we find that the AJ properly denied
Complainant’s request to include witnesses because the AJ determined
that their testimony would not be relevant to the accepted claims.
We note that Complainant was permitted to call his own witnesses at the
hearing, but he opted not to examine any witnesses during presentation
of his case-in-chief. We also note that Complainant was permitted to
cross examine Agency witnesses during the hearing.
With respect to the AJ’s decision to terminate the hearing proceedings
before the Agency had completed its case-in-chief, the record reflects
that Complainant repeatedly failed to follow the AJ’s instructions,
interrupted parties and the AJ when they were speaking, and raised his
voice or exhibited otherwise intimidating behavior during the hearing.
Despite repeated warnings from the AJ that his actions would not be
tolerated, Complainant continued to be disruptive and even challenged
the AJ to end the proceedings. We find that the AJ was well within the
bounds of her discretion when she terminated the hearing proceedings due
to Complainant’s refusal to cooperate and generally disruptive behavior.
Discrimination Claims
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of this decision, we assume without so finding that
Complainant established a prima facie case of national origin, sex, color,
disability, age, and reprisal discrimination.3 We find that the Agency
articulated legitimate, nondiscriminatory reasons for its actions.
The Special Agent testified at the hearing that TIGTA investigated
Complainant in 2008 after it was alleged that he improperly plugged a
personal computer into the Agency’s LAN in violation of Agency policy.
The Special Agent testified that he interviewed Complainant in August
2008 regarding an allegation that he had abused his government e-mail
privileges and confirmed that Complainant was represented by the union
at the meeting. The Special Agent further testified that in December
2008, he suggested that Complainant use his official Agency title and
work e-mail address when corresponding with taxpayers rather than his
own personal information to avoid confusing taxpayers in the future.
The Manager did not testify at the hearing, but she submitted an
affidavit into the record averring that she neither referred Complainant
to a “personality alteration program” nor suggested that he seek
psychiatric help. The Manager averred that she approved any leave slips
Complainant signed and submitted. She further averred that, although
Complainant was occasionally assigned “aged” cases, he was not
assigned cases in higher numbers than his counterparts. The Manager
indicated that she did not identify Complainant as Chinese, refuse to
recognize his national origin as Hawaiian, or use “TIGTA interrogatory
techniques” on Complainant. With respect to the transfer claim, the
Manager averred that Complainant requested a transfer in June 2008.
However, he did not indicate where he wanted to be transferred.
She responded by telling him that she was the only manager assigned
to manage employees in Brooklyn, New York who are working on Exempt
Organization Determination case, but that he was free to request
a reasonable accommodation through the Agency’s formal process,
apply for jobs in other functional areas/business units, or apply for
a hardship transfer.
Complainant now bears the burden of proving, by a preponderance of the
evidence that the Agency’s articulated reasons for its actions were
pretext for discrimination. Pretext may be shown either directly by
showing that a discriminatory reason more likely motivated the employer
or indirectly “by showing that the employer's proffered explanation
is unworthy of credence.” Burdine, 450 U.S. at 256. Rejection of the
employer’s proffered reason permits the trier of fact to “infer the
ultimate fact of intentional discrimination.” Hicks, 509 U.S. at 511.
Upon review, we find that the AJ’s determination that Complainant
failed to establish pretext is supported by substantial evidence in the
record. We find no evidence that the Agency’s actions were motivated by
discriminatory animus towards his protected classes. Although Complainant
disagrees with the testimony provided by Agency officials at the hearing
and challenges the AJ’s credibility determinations, we note that the
credibility determinations of an AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. See Esquer v. U.S. Postal
Serv., EEOC Request No. 05960096 (Sept. 6, 1996). We do not find evidence
in the record that undermines the testimony provided by the officials
at the hearing.
Complainant places great emphasis in his appeal statement on his argument
that the AJ improperly relied upon hearsay in making her determinations.
However, the Commission notes that the rules of evidence are not to be
applied strictly in administrative proceedings before the Commission.
See 29 C.F.R. §1614.109(e). Hearsay evidence is not per se devoid of
evidentiary value. Thomas v. Dep’t of State, EEOC Appeal No. 01932717
(June 10, 1994). Here, we find it reasonable that the AJ would give
some weight to testimony regarding third-party employee reports about
Complainant's conduct, particularly given that the TIGTA investigations
were initiated based upon Complainant’s alleged misconduct.
Finally, to the extent that Complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A prima facie case of hostile work environment is precluded
based on our finding that Complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or retaliatory motive. See Oakley v. U.S. Postal Serv., EEOC Appeal
No. 01982923 (Sept. 21, 2000).
CONCLUSION
The Commission finds that the AJ’s factual findings are supported
by substantial evidence in the record. We discern no basis to disturb
the AJ’s decision. After a careful review of the record, including
arguments and evidence not specifically addressed in the decision,
the Agency’s final order 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
January 23, 2012
Date
1 It is unclear from the record whether the three TIGTA investigations
resulted in any findings that Complainant violated Agency policy or
whether Complainant was disciplined for his alleged actions.
2 Complainant also raises new allegations of discrimination on appeal.
Complainant is advised to initiate contact with an EEO Counselor if he
wishes to pursue these additional allegations. The Commission will not
accept new claims raised on appeal.
3 For purposes of this decision the Commission assumes, without
so finding, that Complainant is an individual with a disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102346
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102346