Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-0702-0500 (E.E.O.C. Jul. 2, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120130702

Hearing No. 530201200202X

Agency No. IRS110545F

DECISION
On November 28, 2012, Complainant filed an appeal from the Agency’s November 5, 2012,
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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact
Representative at the Agency’s facility in Philadelphia, Pennsylvania. On July 14, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
basis of his disability (hearing loss) when:

1. Beginning in February 2011, he was isolated from his team lead and other team
members;
2. Beginning in February 2011, the On-the-Job Instructors (OJI) did not provide him
with the same amount of assistance as was provided to other team members;
3. On May 20, 2011, and on May 23, 2011, his manager held discussions with him
regarding his performance in an open area where other employees could hear;
4. On May 24, 2011, he was issued a Memo for Unacceptable Behavior;
5. On June 9, 2011, he was issued a Performance Counseling Memo;
6. On June 13, 2011, he was issued a Memo for Failure to Follow a Directive; and
7. Effective June 16, 2011, he was terminated during his probationary period.
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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
A settlement conference was scheduled for September 17, 2012, but after Complainant failed
to appear, the AJ issued an Order to Show Cause. The AJ issued a Sanctions Order on
September 27, 2012, and an Order of Dismissal on October 3, 2012. 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. On appeal,
Complainant contends the Agency erred in its finding of no discrimination and that the AJ
erred in dismissing his complaint.

ANALYSIS AND FINDINGS
Initially, we note that Complainant contends the AJ abused her discretion by dismissing his
request for a hearing after he failed to appear at a scheduled settlement conference. While
Complainant stated that he had a severe ear infection and had been hospitalized several weeks
prior to the scheduled conference, he failed to provide any supporting documentation in his
response to the AJ’s Order to Show Cause. We note that an AJ has broad discretion in the
conduct of a hearing, including matters such as discovery orders, scheduling,
admission/exclusion of evidence, and witness selection. See

29 C.F.R. § 1614.109(c). Because
Complainant failed to follow the AJ’s order, we find that the AJ did not abuse her discretion
by dismissing the hearing request.
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”).
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
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preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of
disability discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. With respect to claim (1), the record shows that all the employees on
Complainant’s floor were spread out from their manager and team lead. Furthermore, the
Department Manager (S1) and the Lead Supervisor (S2) stated that Complainant was moved
from his original seat after he found that his computer was not working and that he never
expressed any concerns to management about the move. S2 also stated that she was not sitting
far away from Complainant and that she had advised him to come to her if he needed help.

As to claim (2), the Agency has shown that assistance was provided to Complainant, or the
Agency attempted to provide assistance to Complainant, on numerous occasions.
Complainant’s Manager (S3) allowed Complainant to change OJI after stating he had problems
with the OJI to whom he had been assigned. This OJI and S3 came to his desk to help him and
waited 45 minutes but Complainant never arrived. A different OJI also stated Complainant was
not at his desk when she responded to his requests for assistance. S2 also said she was never
made aware that Complainant felt he was not receiving the same amount of assistance as other
new employees. Several coworkers stated Complainant became agitated when OJIs and others
tried to correct his mistakes and did not seem to be willing to do the work and research on his
own. Further, Complainant has presented no evidence that the OJIs, or anyone in the office,
were aware of his claimed disability. Even if we assume, arguendo, that the OJI’s were aware
of his claimed disability, Complainant failed to show they helped him less than other team
members and/or that this was because of discrimination.

As to claim (3), the record shows that S3 explained to all her subordinate employees several
times that she did not have the equipment to listen to and review customer calls in her office
which was necessary in order to review their work. S3 further explained that she asked all her
employees if this was acceptable and informed them they could bring their headsets to listen to
the calls so no one else could hear. The record shows that Complainant did not bring a headset.
Further, the record shows that S3 shared reviews with all the team members in the same
location as Complainant’s review was conducted.

With respect to claims (4) and (5), the record shows that on May 24, 2011, Complainant was
issued a Memo for Unacceptable Behavior as a result of events during meetings addressed in
claim (3). Although Complainant alleges he was speaking loudly because of his disability, S3
characterized the meetings differently and stated that Complainant became hostile with her and
the union representative present at the May 23 meeting. S3 pointed out that Complainant was
speaking so loudly that another manager had to come over and ask him to quiet down. While
Complainant alleges he told this manager he was speaking loudly because of his disability, both
S3 and the other manager deny he said this. On June 9, 2011, Complainant was issued a
Performance Counseling Memo because errors had been found in 12 of the 17 cases
Complainant had worked on and that his case handling was incorrect and incomplete. S3 stated
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she issued the same memo to another employee with no known disability and two other
employees received memos regarding errors in their work who also had no known disabilities.

With respect to claim (6), on June 13, 2011, Complainant was issued a Memo for Failure to
Follow a Directive after S3 came to his desk and asked him to meet with her but he stated he
wanted his union representative present. Complainant alleges he was never told he could not
have his union representative present and that he never refused to attend the meeting. S1,
however, stated that the union agreement does not entitle employees to union representation
during performance counseling and furthermore, S3 states that she told Complainant that
failure to follow her directive could result in disciplinary action. S1 and S3 both state they
informed Complainant he was free to talk to the union about the memo after the meeting,
however he still failed to follow S3’s direction. Accordingly, as with the previous claims, we
find that Complainant has not shown that the Agency’s articulated reasons for its actions were
a pretext for discrimination or were motivated by discriminatory animus toward his disability.

With respect to Complainant’s termination during his probationary period, the record shows
that management terminated him for poor performance, disruptive behavior, and other conduct
issues. Specifically, Complainant’s termination letter references the May 24, 2011 memo
Complainant received for causing a disruption in the work area which caused other employees
to stop work and listen and the June 13, 2011 memo for failure to follow a directive to report
to S3’s desk to go over Complainant’s performance counseling memo. The termination letter
also points to the June 9, 2011 performance counseling memo which indicated Complainant’s
case handling was incomplete, Complainant failed to note a previous action on a case, and
Complainant closed a case without inputting the appropriate adjustment. The termination letter
noted, “Your failure to complete these actions and properly process the work assigned to you
places an undue burden on the taxpayer. An inaccurate adjustment delays the process of
correcting accounts and is a failure to provide effective and efficient customer service.” We
find that Complainant has not shown the Agency’s articulated reasons for its actions were a
pretext for discrimination or were motivated by discriminatory animus toward his disability.

Finally, to the extent that Complainant is alleging that the Agency failed to provide him with a
reasonable accommodation, we note that under the Commission’s regulations, an agency is
required to make reasonable accommodation to the known physical or mental limitations of an
otherwise qualified employee with a disability, unless it can demonstrate that the
accommodation would impose an undue hardship on the operation of its business. 29 C.F.R.
§1630.9(a). The term “qualified,” with respect to an individual with a disability, means that
the individual satisfies the requisite skill, experience, education and other job-related
requirements of the employment position such individual holds and, with or without reasonable
accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m).

Here, assuming for the purposes of analysis only, that Complainant is a qualified individual
with a disability, we find that the Agency did not violate the Rehabilitation Act. Specifically,
the record shows that the only medical documentation submitted by Complainant is dated
August 5, 2011, which is after the effective date of Complainant’s termination. There is no
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evidence to show that Complainant provided any medical documentation regarding his
disability or need for accommodation to the Agency during his employment. As such, we find
that he has not shown that he requested, or was denied, a reasonable accommodation.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find the Agency appropriately found no discrimination.
Therefore, 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
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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

Date
July 2, 2015