0120101907
01-26-2011
Daryl F. Davis, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Daryl F. Davis,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120101907
Agency No. IRS090023F
DECISION
On April 2, 2010, Complainant filed an appeal from the Agency's March 3,
2010, final decision 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 decision.
ISSUES PRESENTED
On November 10, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), disability (recovering alcoholic, drug addict), age (44),
and reprisal for prior protected EEO activity when:
1. In 2005, 2006 and 2008, the Agency intentionally issued Complainant's
performance evaluations and/or performance awards in an untimely manner;
2. In 2007, the Agency intentionally issued Complainant's performance
award in an untimely manner;
3. On or around October 1, 2008, the Agency denied Complainant's
certification for the position of Supervisory Special Agent/Criminal
Investigator, which made him ineligible for Vacancy Announcement Number
23-74-08-A2C308;
4. On or around November 13, 2008, Complainant received an inaccurate
mid-year review;
5. On or around December 4, 2008, the Agency denied Complainant's
certification again for the position of Supervisory Agent/Criminal
Investigator, which made him ineligible for Vacancy Announcement Number
23-74-08-AC380 and
6. On an ongoing basis, most recently in December 2008, Complainant has
been barred from conducting investigations although he has no disciplinary
actions in his personnel file.
The record further indicates that Complainant's November 10, 2008
formal complaint included the following issues not discussed with the
EEO Counselor in this matter:
A. In 2007, Complainant received his annual performance evaluation in
an untimely manner;
B. In a memorandum dated September 9, 2008 Complainant was informed that
on his performance evaluation he would be rated "met" in areas in which
he is unable to perform a task due to Giglio1 issues; and
C. Over the course of the last several years, the Agency has archived and
kept Complainant's confidential information in a file at Complainant's
workplace.
In a partial acceptance/dismissal letter dated February 10, 2009, the
Agency accepted claims 1-6 but dismissed claims A, B, C, in accordance
with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that they
raised claims previously addressed by the Agency. Specifically, the
Agency indicates that Complainant filed Agency Case Number IRS-07-0672
with the Agency on June 7, 2007 and filed an amendment on September
26, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Special Agent, GS-1811-13 at the Agency's Mid-Atlantic Area Field
Operations, Criminal Investigations Division facility in Detroit,
Michigan.
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 EEOC Administrative Judge (AJ). In accordance
with Complainant's request, 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.
In claims 1 and 2, Complainant alleges that the Agency discriminated
against him when his 2005, 2006, 2007 and 2008 performance evaluations
and performance awards were not issued in a timely manner. In response
to Complainant's claims in that regard, the Agency indicates that the
delay in processing Complainant's performance evaluations and awards as
identified in claims 1 and 2 was simply the result of procrastination
on the part of the management officials responsible for evaluating
Complainant's performance and for submitting the proper paperwork.
The Agency further indicates that in general, managerial inexperience was
the cause of the delay in issuing the evaluations and awards. However,
in its opposition to Complainant's appeal, the Agency further contends
that claims 1 and 2 were untimely filed. Specifically, the Agency states
that Complainant's 2005 and 2006 annual appraisals and performance awards,
his 2007 performance award and his 2008 annual appraisals were issued more
than 45 days prior to Complainant's EEO Counselor on October 9, 2008.
In claims 3, and 5, Complainant alleges that the Agency subjected him
to discrimination when his certification was denied for the position
of Supervisory Special Agent/Criminal Investigator, which made him
ineligible for Vacancy Announcement Number 23-74-08-A2C308. In claim
6, Complainant alleges that the Agency has barred him from conducting
criminal investigations. The record indicates that in 2003, Complainant
was named as a potential witness in a federal criminal trial in an
unrelated matter. The Agency was advised by the United States Attorney's
Office to conduct a review in order to determine whether any Giglio
issues existed for Complainant. A review of several records related
to Complainant, disclosed various apparent inaccurate or inconsistent
statements made by Complainant in reference to prior criminal convictions,
prior arrests, the receipt of college degrees, previous employment, and
prior drug use. According to the Agency, the job of Special Assistant
requires the ability to provide credible testimony. In that regard, and
as a result of Complainant's Giglio issues, the Agency denied Complainant
certification for the Supervisory Special Agent/Criminal Investigator
position and prohibited him from performing criminal investigations.
In claim 4, Complainant alleges that he received an inaccurate mid-year
review in November 2008. Complainant's supervisor indicated that at
the time of his mid-year review, Complainant had repeatedly questioned
her authority in an unprofessional manner, was reluctant to lead a Task
Force, claimed credit for work her did not perform, and displayed a lack
of initiative on a major project he had been assigned.
CONTENTIONS ON APPEAL
Complainant offers no new arguments on appeal regarding the Agency's
finding of no discrimination in this matter.
ANALYSIS AND FINDINGS
Partial dismissal of claims A, B, and C
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission. It
has long been established that "identical" does not mean "similar." The
Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical
to the elements of the prior complaint in time, place, incident, and
parties. See Jackson v. Department of the Air Force, EEOC Appeal No
01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524
(April 24, 1997).
Upon review of the instant record, the Commission finds that the
matters raised in claims A, B and C, are identical to matters previously
raised by complainant and addressed by the agency in Agency Case Number
IRS-07-0672 . The record further indicates that Complainant has appealed
the Agency's decision in the prior complaint to the Commission's Office
of Federal Operations. Complainant's appeal on Agency Case Number
IRS-07-0672 is currently pending before the Commission. See Davis
v. Department of the Treasury, EEOC Appeal No. 0120093309.
Claims 1 and 2
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review, the Commission finds that claims 1 and 2 relating to
Complainant's performance evaluations and/or awards in 2005, 2006,
2007 and 2008 are properly dismissed as untimely.
Claims 3-6
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").
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd
, 545 F.2d 222 (1st Cir. 1976). For Complainant 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). For instance,
to establish a prima facie case of reprisal, Complainant generally must
show that: (1) he engaged in protected EEO activity; (2) the Agency
was aware of the protected activity; (3) subsequently, he was subjected
to adverse treatment by the Agency; and (4) a nexus exists between his
protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is a pretext for discrimination. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To the extent that Complainant alleges that the delay in receiving
his performance evaluations and performance awards, as well as the
denial of his certifications and his inability to conduct criminal
investigations constituted discriminatory harassment, the Commission
notes that 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. U.S. Postal Serv., 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
Sys., 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 Sys., 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 environment harassment, Complainant must
show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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.
After a review of the record, the Commission finds that Complainant's
claims do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that he also failed to prove that the Agency's actions were unlawfully
motivated by his protected classes. Even assuming that the alleged
incidents would be sufficiently severe or pervasive to constitute a
hostile work environment, there is no evidence that the Agency was
motivated by discriminatory animus. Accordingly, Complainant has not
shown that he was subjected to a discriminatory hostile work environment.
Here, we agree with the Agency's finding of no discrimination. To the
extent that Complainant alleged disparate treatment with respect to
claim 6 regarding not being able to conduct criminal investigations, we
find that Complainant failed to demonstrate by a preponderance of the
evidence that the Agency's reasons for it's actions were a pretext to
mask unlawful discrimination. In reaching this conclusion, the Commission
finds that Complainant failed to show that similarly situated individuals
were treated more favorably under similar circumstances.
Moreover, even assuming arguendo that Complainant satisfied the above
elements to establish a prima facie case on any alleged basis, we find
further that the Agency articulated legitimate, nondiscriminatory reasons
for its conduct as alleged in this matter and Complainant failed to show
that those reasons are pretext for discrimination. Complainant failed to
establish that the Agency's actions were based on discriminatory motives
toward Complainant's protected bases.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that Complainant has failed to demonstrate that the Agency's actions
were taken as a result of discriminatory animus toward Complainant's
protected classes. It is the decision of the Equal Employment Opportunity
Commission to affirm the Agency's final decision because the preponderance
of the evidence 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
January 26, 2011
__________________
Date
1 Giglio refers to the decision in Giglio v. United States, 405 U.S. 105
(1972) involving impeachment material which calls into question the
honestly, integrity, or impartiality of a witness as it relates to the
credibility and veracity of his testimony.
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0120101907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101907