Filberto H,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

01-2013-3195-0500 (E.E.O.C. Oct. 2, 2015)

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

Filberto H,1
Complainant,

v.

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

Appeal No. 0120133195
Agency No. IRS120314F

DECISION
On September 3, 2013, Complainant filed an appeal from the Agency’s July 31, 2013, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The U.S. Equal Employment Opportunity
Commission (Commission or EEOC) 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.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Examining
Technician (Tax Examiner), GS-0592-07, in the Ogden Compliance Service Center,
Automated Underreporter Operations (AUR), Department 2, Team 201, in Ogden, Utah. On
April 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (chronic back-related pain) and in reprisal for prior
protected EEO activity when:2

1 This case has been randomly assigned a pseudonym which will replace Complainant's name
when the decision is published to non-parties and the Commission's website.
(1) since June 2011, he has received numerous written
2 The following claims were dismissed by the Agency on the basis that they were previously
raised as part of a negotiated grievance proceeding in accordance with EEOC Regulation 29
C.F.R. § 1614.107(a)(4): (a) counseling issued/dated on July 7, 2011, September 12, 2011,
September 23, 2011 (Claim 1); (b) counseling issued/dated August 24 and September 1, 2011
(Claim 2); and (c) the Absent without Leave (AWOL) charge (Claim 4). The Agency,
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counseling memoranda about his performance and/or conduct; (2) on August 24, 2011,
September 1, 2011, and February 28, 2012, Complainant received leave counseling; (3) on
November 21, 2011, October 26, 2011, October 12, 2011 and February 3, 2012, Complainant
received negative workload reviews; (4) on September 23, 2011, Complainant was charged 15
minutes AWOL; (5) on November 22, 2011, Complainant received a negative six-month
performance follow-up; (6) on December 9, 2011, Complainant received a formal counseling
memorandum; (7) on February 9, 2012, Complainant was placed on a Development Action
Plan; (8) on April 2, 2012, Complainant received a Letter of Admonishment; (9) on or about
May 24, 2012, Complainant received an unjustifiably low rating on his annual performance
appraisal for the period ending April 30, 2012; (10) on or about August 26, 2012, Complainant
did not receive the Within Grade Increase (WIGI) that he was due; (11) Complainant was
denied a reasonable accommodation when (a) on an unspecified date, he was not allowed to
periodically leave his work area to walk around; and (b) on or about July 31. 2012, his request
to change his Tour of Duty to a later starting time was denied; (12) on or about October 16,
2012, he was issued a departure rating on which he failed Critical Job Element (CJB) 5B
(Workload Management) and was subsequently notified on November 30, 2012, that the
departure rating would serve as his mid-year evaluation; and (13) since November 7, 2012 and
ongoing, management has refused to approve his current FMLA application without referring
his information to the Federal Occupational Health office for evaluation.

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.

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 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”).

nevertheless, investigated these claims as background evidence. We affirm this dismissal and
note that Complainant does not raise the dismissal on appeal.

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Claim 1 - Written Counseling Memoranda Regarding Complainant’s Performance and Conduct

Complainant takes issue with the fact that since June 2011, he had been issued at least fourteen
written counseling memoranda. The record supports the conclusion that many of the reviews
Complainant received were part of his first-line supervisor’s (S1) duties to review and provide
feedback to all Tax Examiners, including Complainant. The record shows that S1 was
required to do a multitude of reviews: four Inventory Management Reviews; four Security
Reviews; four 3081/Time Keeping Reviews; one Workload Review; a Mid-Year Review; and
thirty-six Embedded Quality (EQ) reviews. Additionally, if an employee demonstrated a
decline in performance additional reviews were performed.

June 9, 2011, July 18, 2011, and September 7, 2011 Counseling Memoranda

The record shows that the National Office for the Automated Underreporter Operations set a
nationwide goal of a 10 percent error rate for Tax Examiners. The undisputed record shows
that Complainant’s error rate was 20 percent as of June 9, 2011, which was the third highest
out of approximately 80 employees in six Automated Underreporter Teams at the Ogden
Compliance Service Center. On June 9, 2011, S1 prepared a written counseling memorandum
regarding Complainant’s error rate out of concern that he may have needed additional
counseling.3

The counseling memorandum also advised Complainant that S1 would perform
an additional review of his error rate to gauge if management needed to assist Complainant
with his performance. As of July 9, 2011, Complainant’s overall error rate was 27.78 percent,
the fourth highest at the Ogden Compliance Service Center. S1’s written counseling
memorandum for this date was in furtherance of her efforts to address Complainant’s subpar
error rate. These efforts made a difference, as noted in S1’s written counseling memorandum
dated September 7, 2011. In that counseling memorandum, S1 noted an eight percent
improvement in Complainant’s overall error rate from her previous review. Despite S1’s
efforts and Complainant’s improvement, Complainant’s 21.74 percent error rate as of
September 10, 2011, was still higher than the National Office goal.
October 14, 2011 Counseling Memorandum

The record shows that S1 observed Complainant repeatedly sending personal emails to his wife
on several occasions. On October 14, 2011, S1 issued Complainant a written counseling
memorandum regarding his excessive use of personal email in light of the Agency’s limited use
policy. S1 explained that she was not concerned about the nature of Complainant’s emails to
his wife. Rather, she explained that she issued the counseling memorandum because of her
concern that Complainant’s personal email activity contributed to the decline she observed in
Complainant’s performance, especially his use of time. The record shows that S1 also
counseled another employee for her use of time during work hours.

3 S1 also issued written counseling memoranda to eight employees besides Complainant to
address their declining performance.

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March 9, 2012 Counseling Memorandum

As part of her supervisorial duties, on March 7, 2012, S1 prepared a review that contained
“feedback” as an “FYI” to share an alternative approach to processing a taxpayer case with
Complainant. Complainant subsequently processed the case as suggested, making it a point to
annotate in the taxpayer’s case history that he was “directed” to do so by S1. S1’s written
counseling memorandum of March 9, 2012, clarified the difference between management
“feedback” versus a management “directive.”

Complainant’s rebuttal shows that he either, did not understand or refused to accept, S1’s
suggestion as indicated by his statement that he “commented to [his] manager that if it was a
close call that there are opinions on both sides of the issue, that my belief is manager should
always support the tax examiner, and give that employee the benefit of the doubt. Manager
disagreed.”

That same day, S1 issued Complainant a separate written counseling memorandum regarding
his recording of time spent on casework. This time the counseling resulted from
Complainant’s indication that he spent 14.3 hours working cases on his timesheet even though
the history clocked only eight hours of work activity. Complainant’s rebuttal does not
substantially speak to S1’s review, instead it simply discounts her observation by stating it
“appears to me very inaccurate” and that “there is no way that I was not working at my job for
5.3 hours.”

May 17, 2012 Counseling Memorandum

On May 17, 2012, S1 issued Complainant a written counseling memorandum regarding his
remaining FMLA leave balance. The counseling memorandum indicated that Complainant had
52 hours of FMLA leave remaining and that at his current rate of use (three to four hours per
day) he would run out of FMLA leave by June 2012. The counseling memorandum further
indicated that if Complainant exhausted his FMLA allowance, he would not be able to take
additional FMLA leave until December 1, 2012, when his next FMLA year began. S1’s
counseling was a courtesy to Complainant.

June 19, 2012 Counseling Memorandum

The record shows that S1 issued Complainant a written counseling memorandum on June 19,
2012, concerning another discrepancy in time worked on cases versus time recorded on
Complainant’s timesheet. The June 19, 2012 counseling memorandum involved Complainant’s
timesheet recordation that he spent 4.3 hours on case work versus the 2.9 hours reflected in
case histories. Complainant does not dispute S1’s finding, opting once again to discount her
observation by stating: “there is always going to be a discrepancy between timesheets and case
reviews,” in part because he “absorb[s]” various tasks in his reported time such as research,
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documenting case actions, walking work documents back and forth within the office, and
restroom breaks.

July 13, 2012 Counseling

On June 28, 2012, Complainant signed for receipt of a House Keeping Expectations
Memorandum (HKEM) that required all employees to use authorized drinking cups in the work
area. Nevertheless, Complainant admitted to using unauthorized drinking cups (fast food and
gas station drink containers) in violation of the HKEM. In addition, several of Complainant’s
peers observed Complainant using unauthorized drinking cups in the work area on more than
one occasion. On July 13, 2012, S1 issued Complainant a written counseling for his admitted
use of unauthorized drinking cups (fast food and gas station drink containers) in the work area.
The record shows that S1 also counseled another employee about her use of an unauthorized
drinking cup in the work area.

Claim 2 - Written Counseling Memoranda Regarding Complainant’s Leave Usage

S1 explains that she issued Complainant a February 28, 2012 leave counseling memorandum
because he used sick leave in four out of five pay periods from January 1, 2012 to February
27, 2012. Due to the fact that Complainant did not have sufficient sick leave to cover these
absences, S1 allowed Complainant to use annual leave in lieu of sick leave. The February 28,
2012 leave counseling memorandum informed Complainant that S1would not authorize annual
or any other leave in lieu of sick leave unless Complainant provided medical documentation
supporting his absences as allowed by Article 34, Section 4.A of the 2009 National
Agreement. The record shows that Complainant’s second-line supervisor (S2) approved of the
written counseling memorandum because of Complainant’s unusual sick and annual leave
usage. Management explained that the counseling memorandum was intended to provide
Complainant with a clear understanding of management’s attendance expectations.

Claim 3 - Workload Reviews

On October 12, 2011, October 26, 2011, November 21, 2011, and February 3, 2012,
Complainant received workload reviews from S1. The record shows that as a first-level
supervisor, S1 was required to perform one workload review but she was “not limited to that
number if the [employee’s] performance has indicators of a decline.” S1’s workload reviews
were intended to provide Complainant with “a heads up that there was a decline in his
performance so he could do what he needed to do to improve” his performance.

S1’s review of Complainant’s workload on October 12, 2011, revealed that Complainant
incorrectly handled nine out of the fifteen cases selected for review, suggesting a decline in
performance. The record shows that S1 invited the union to the first workload review. At that
review, the union representative agreed with S1’s observations about the decline in
Complainant’s performance. The record indicates that the October 26, 2011 review was not a
workload review but rather a quarterly inventory review that S1 prepared for all employees.
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S1 conducted another workload review on November 21, 2011. The November 21, 2011
workload review revealed that Complainant incorrectly handled two out of ten cases selected
for review. After the November 21, 2011 workload review, S2 offered to facilitate workload
review discussions between Complainant and S1. However, Complainant did not make himself
available for such discussions. The record also shows that in another workload review
performed on an unspecified date, Complainant demonstrated incorrect handling of 10 out of
15 taxpayer cases. Complainant’s next workload review, dated February 3, 2012, indicated
that he handled all 22 reviewed cases correctly. S1 acknowledged Complainant’s improvement
in that review. There were no further workload reviews.

Claim 5 – Six-Month Performance Evaluation

Article 12 of the 2009 National Agreement required that employees receive mid-year reviews
at the six-month mark provided they worked a minimum of sixty days under the same
supervisor. At the time that Complainant’s received his mid-year appraisal on November 22,
2011, he had worked under S1 for six months beginning April 2011. S1 explained that she
would have been in violation of the parties’ collective bargaining agreement had she not
prepared the challenged mid-year review. The record also shows that S1’s other subordinate
employees who had worked a minimum of sixty days under her supervision also received mid-
year reviews at the six-month mark.

Claim 6 - Counseling Memorandum Regarding FMLA Usage

The record shows that on November 30, 2011, Complainant was approved for 480 hours of
FMLA leave that would average about six to twelve hours per week as of December 1, 2011.
The undisputed record also shows that during the first week of this FMLA period,
Complainant exceeded his weekly FMLA allowance by taking 15 hours of FMLA leave. S1
explained that her December 9, 2012 counseling memorandum outlined Complainant’s
approved FMLA allowances and requested supporting documentation for Complainant’s need
for more FMLA leave than indicated by his health care provider. Management further
explained that such a request for supporting documentation was a standard policy when
employees exceeded the time set forth by their health care providers for their respective
FMLA-related conditions.

The record further shows that on December 14, 2011, Complainant’s health care provider
provided an updated prognosis that Complainant’s need for FMLA leave “may vary widely, up
to twenty hours per week, but will average between six to twelve hours per week.” Two days
later, the Agency approved Complainant for FMLA leave under these new parameters. In
addition, the record shows that S1 requested additional documentation from two employees
who requested FMLA leave in excess of time set forth by their health care providers for their
respective FMLA-related conditions.

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Claim 7 - Complainant’s Placement on a Development Action Plan

The record shows that on February 9, 2012, Complainant was placed on a Development Action
Plan because he was at risk of failing in CJE 5A pertaining to “Use of Time.” S1 explained
that Complainant: (1) more than occasionally failed to take timely actions to effect or initiate
appropriate case action or follow up within established guidelines; (2) did not complete cases
within the time allotted for their difficulty level or in the same amount of time as indicated on
his timesheet; and (3) was not always at his work area during his tour of duty. S1 also noted
several recurring trends which contributed to Complainant’s potential for a failed rating in CJE
5A. These trends included spending 20 to 30 minutes on simple tasks which should have only
taken a few minutes (such as logging documentation sent in by a taxpayer). According to S1,
Complainant would also spend a disparate amount of time working on cases of similar
difficulty (a few minutes on some cases, more than half an hour on other similar cases).
Finally, S1 explained that Complainant would be absent from his work area for extended
periods of time. Complainant’s prior supervisor and his co-workers corroborate S1’s
characterization.
.
S1 explained that in order to make the Development Action Plan effective, she performed a
100 percent review of Complainant’s work for the duration of the Development Action Plan.
S1 further explained that she underwent these efforts to get a sense of how Complainant was
spending his time performing his duties and to find ways to help him improve his performance
in CJE 5A.

The record shows that Complainant responded to S1’s observations on his use of time by
reiterating that she did not account for tasks such as walking documents back and forth within
the office, reading and responding to emails, restroom breaks, discussions with his Lead and
manager, and equipment problems. Complainant estimated that he took an hour per day for
these tasks. Based on her supervisorial experience and knowledge, S1 found these
explanations insufficient and explained that the Development Action Plan was meant to bring
S1’s findings to Complainant’s attention so that he could modify his use of time accordingly.

The record also shows that S1 performed 100 percent review of six other employees during the
relevant time period. S1 also performed On-the-Job Visits for three other employees who also
demonstrated deficiencies in CJE 5A.

Claim 8 - Letter of Admonishment

S2 explained that she issued the April 2, 2012 letter of admonishment to Complainant because
he did not always place his work in the designated “pocket” on his Lead’s desk for 100 percent
review. The record shows that although required to do so as part of his Development Action
Plan, Complainant resisted the directive because he felt that it split up his processing of a batch
of work. Moreover, the record shows that despite S1’s promise that she would review and
return all of the work to his pocket before his tour of duty began, Complainant resisted the
directive. The record shows that Complainant similarly resisted S1’s suggestion that
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Complainant make a photocopy of the paperwork he needed to prevent splitting up a batch of
work. S2 explained that in light of this resistance, a letter of admonishment was warranted.

Claim 9 - Annual Performance Appraisal Rating

The record shows that Complainant’s appraisal period ran from May of the preceding year
through April of the current year. On May 22, 2012, Complainant received an annual
performance appraisal covering the period from May 2011 to April 2012, in which he received
an overall rating of 3.20. The appraisal period started shortly after his transfer to S1’s team
in April of 2011. Prior to Complainant’s transfer, his former first-level supervisor (SO) had
observed weaknesses in his performance which included: (1) lack of focus on his work; (2)
extended absences from his desk for long periods of time; (3) slow completion of tasks; (4)
work accuracy issues; (5) issues with professionalism; and (6) issues with his interaction with
his peers. Nevertheless, the record shows that upon his transfer to S1’s team, S2 restored
Complainant’s previous 4.60 rating from another supervisor because she wanted Complainant
to have a fresh start.

S1’s evaluations revealed Complainant was in danger of having his performance appraisal
ratings decline due to many of the same issues previously observed by SO. As required by the
2009 National Agreement, S1 provided Complainant with counseling and feedback to address
the performance issues that could negatively impact his performance appraisal ratings.
According to S1, despite her counseling efforts, Complainant’s performance decline warranted
a reduced rating. As the reviewing official for the challenged appraisal, S2 approved
Complainant’s performance appraisal because it was supported by documentation of
Complainant’s performance.

Claim 10 – Denial of Within-Grade Increase

Complainant’s overall rating of 3.20 on his performance appraisal indicated he was performing
at a “Minimally Successful” level which is below the “Fully Successful” level required for a
WIGI. The record shows that an employee who receives a “Fails” in any portion of a CJE can
receive no higher than a “Minimally Successful” rating on his performance review. Since
Complainant received a “Fails” in the CJE 5A, he was precluded from receiving his WIGI
originally scheduled for August 26, 2012.

While Complainant received a “Minimally Successful” rating, the record shows that he was
afforded a chance to improve his performance within a sixty-day opportunity period. The
record supports the conclusion that during this time, Complainant’s performance did not
improve to the “Fully Successful” level.

Claim 11 - Reasonable Accommodation Requests

The record shows that on April 25, 2012, Complainant requested a reasonable accommodation
of being allowed to leave his work area periodically to walk around. On May 7, 2012,
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management offered Complainant a reasonable accommodation by allowing him to break up
his two fifteen-minute breaks into several five minute breaks. On May 7, 2012, Complainant
withdrew his reasonable accommodation request to periodically leave his work area.
Complainant stated that he was reluctant to participate in the reasonable accommodation
process because management would offer their own accommodations rather than the ones he
requested.

In July 2012, Complainant requested a reasonable accommodation consisting of two separate
accommodations: (1) change in his tour of duty to start half an hour later in order to conserve
his FMLA hours because he tended to take FMLA leave during the beginning of his shift; and
(2) an ergonomic chair. On July 31, 2012, management provided Complainant with the
ergonomic chair but denied the tour of duty change because Complainant did not provide
documentation establishing a medical need for the request.

Claim 12 - Conversion of Complainant’s Mid-Year Rating to His Departure Rating

The record shows that on September 9, 2012, S1 left Complainant’s team to supervise another
team. S1 subsequently provided Complainant with his departure rating on October 16, 2012.
Under the terms of the 2009 National Agreement, since S1 permanently departed her position
during the last sixty days of Complainant’s rating period, the departure appraisal became
Complainant’s rating of record. The record also shows that besides Complainant, five other
employees had the last sixty days of their rating periods transpire after S1’s departure (three
received mid-year ratings and two received final annual ratings).

Claim 13 - Management’s Referral of Complainant’s FMLA Application to the Federal
Occupational Health

In his November 2012 FMLA application, Complainant requested up to 25 hours of FMLA
leave per week. The application differed from Complainant’s previous FMLA applications in
which he requested an average of six to twelve, but no more than 20 hours of FMLA leave per
week. Management explained that given the disparity, the application was forwarded to the
Department of Health and Human Services, Division of Federal Occupational Health (FOH)
for clarification. On December 26, 2012, the FOH sent management a letter indicating that
Complainant’s health care provider clarified that Complainant required only up to 20 hours per
week of FMLA leave. Based on his health care provider’s response, S3 approved Complainant
for twenty hours of FMLA leave per week.

We assume for the purposes of this decision that Complainant is an individual with a disability
within the meaning of the Rehabilitation Act. Based upon the facts noted above, we find that
the Agency articulated legitimate, non-discriminatory reasons for its employment actions. We
also find insufficient evidence of pretext or that management’s employment actions were
motivated by discriminatory or retaliatory animus. In addition, we find that the Agency
offered Complainant an effective accommodation with respect to his first request and
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Complainant failed to provide sufficient supporting medical documentation with respect to his
second request.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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).

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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

October 2, 2015
Date