01A20074
05-15-2003
James Z. Azarela, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
James Z. Azarela v. Department of the Treasury
01A20074
May 15, 2003
.
James Z. Azarela,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service)
Agency.
Appeal No. 01A20074
Agency No. 98-4031
Hearing No. 340-98-4231X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission Affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Dyed Diesel Fuel Compliance Officer at the agency's Santa Anna Post
of Duty, Southern California District facility. Complainant sought EEO
counseling and subsequently filed formal complaints on November 12, 2002,
and on December 9, 1997, alleging that he was discriminated against on
the bases of national origin (Italian American), sex (male), disability
(broken right wrist), and reprisal for prior EEO activity when:
(1) he received a Letter of Reprimand on July 30, 1997;
(2) he was not given an award for his work in making a fraud referral;
he was denied a reasonable accommodation for his wrist injury;
he was subjected to quid pro quo sexual harassment and a hostile work
environment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ but his hearing request was dismissed and
the case remanded to the agency based on his failure to abide by the AJ's
Order to provide information regarding his motion for summary judgment.
The AJ's Order was entered April 25, 2001. Complainant contends that
the AJ's Order was designed to circumvent and thwart the administrative
process.
In its FAD, the agency concluded that complainant failed to present
a prima facie case of discrimination based on reprisal, sex, national
origin or disability because he failed to show that others outside of
his protected groups were treated more favorably. Moreover, the agency
found that the agency officials responsible for issuing a reprimand
were not aware of his EEO activity. In addition, the agency found that
complainant failed to show he was an individual with a disability because
his wrist condition was a temporary disability and there was no evidence
he was substantially limited in a major life activity.
Even assuming complainant established a prima facie case on each of
the alleged bases, the agency concluded that the agency's officials had
legitimate non-discriminatory reasons for taking the actions in question.
In particular, the agency contends that the reprimand was issued because
of complainant's misconduct in failing to following the instructions
of his supervisor, being absent without taking leave (AWOL), and for
unprofessional conduct. Addressing complainant's claim that he was
unfairly denied an award, the agency contended that it is within the
manager's discretion to grant an award and that there was no evidence
that there was a discriminatory motive when complainant was not given
an award. The agency further claimed that complainant's work was not
critical in deciding to prosecute the case.
Regarding his claim of sexual harassment, the agency concluded that
complainant's claim was not credible because he failed to detail when
or where the alleged incidents of harassment occurred. Additionally,
the agency concludes that complainant's claim is without merit because
he rarely saw his supervisor, his meetings with her were always in a
group and the actions complained of did not constitute harassment.
On appeal, complainant contends that the agency's final decision was
incorrect and should be reversed. He claims that the agency knew
about his protected activity in July 1997 at the time it issued him a
reprimand because he received the letter in August 1997. He contends
that the reasons for the reprimand were a pretext for discrimination
because the events were stale and had occurred months before the letter
was issued. Complainant states many of the same arguments he raised in
the investigation into his complaint of sexual harassment. He contends
that his supervisor invited him to lunch, and on overnight business trips,
among other things, which he interpreted as requesting sexual favors.
He contends that his supervisor's reprimands for his misconduct were
quid pro quo sexual harassment because they would not have occurred if
he had not refused her sexual advances. Complainant does not contest the
agency finding of no discrimination in not recommending him for an award.
The agency submits no additional comments and requests that we affirm
its decision.
ANALYSIS AND FINDINGS
As a preliminary matter, we address complainant's claim that the AJ
erred by dismissing his hearing request due to his failure to respond to
information requests. Our review of the AJ's Order, complainant's appeal
statements and the record as a whole indicates that the AJ's Order was
within his discretion and was a fair response to complainant's failure
to comply with a request for information. Therefore, complainant's
request that the matter be remanded for a hearing is denied.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant contends he was treated less favorably than employees of
Mexican American descent, when he was reprimanded for misconduct and for
unprofessional behavior. The Commission finds that there is no evidence
that the agency's reasons for issuing him two reprimands were a pretext
for discrimination based on his national origin. Complainant never
denies that he engaged in the behavior and misconduct for which he was
reprimanded but states that the agency's delay in issuing the discipline
is reason to suspect discrimination. The record discloses that others
outside of complainant's protected group were similarly disciplined for
various infractions of workplace rules and leave regulations and that
complainant was not treated any differently than his co-workers who were
not Italian American. Therefore, we conclude that complainant failed
to prove by a preponderance of the evidence that he was discriminated
against because of his national origin.
Complainant also claims that his supervisor (S1) subjected him to sexual
harassment which created a hostile work environment. Complainant also
claims that when he refused S1's sexual advances, she denied him
certain benefits and privileges of his employment. Complainant must show
that the incidents were "sufficiently severe or pervasive to alter the
conditions of complainant's employment and created an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) he is a member of a statutorily protected class;
(2) he was subjected to unwelcome verbal or physical conduct related to
his membership in that class his; (3) the harassment complained of was
based on his membership in that class; (4) the harassment had the purpose
or effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Roberts
v. Department of Transportation, EEOC Appeal No. 01970727 (Sept. 15,
2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
Here, complainant claims sexual harassment based on such incidents as
when S1 complimented him on his tie, when she requested information
from him about good restaurants and when she stated to him �I'm old
enough to be your mother.� Complainant further contends that S1 made a
sexual advance when she indicated she wanted him to accompany her on an
overnight business trip along with his co-workers. The Commission finds
that when viewed under a reasonable person standard, these statements
and incidents do not support that complainant was subjected to unwanted
sexual advances or that they were so severe and pervasive as to create
a hostile work environment. Further, we find that the instances when
complainant was reprimanded were not motivated by quid pro quo sexual
harassment but were instead, legitimate actions taken in response to
complainant's misconduct. In particular, complainant was reprimanded for
time and attendance violations, for frequent instances of unprofessional
conduct and for failing to take required training.
We consider now complainant's claim that he was subjected to reprisal
for his EEO activity. Even assuming that complainant established a prima
facie case of reprisal, the Commission concludes that complainant failed
to prove by a preponderance of the evidence that the agency's actions
were motivated by reprisal and not by his misconduct and violation of
workplace rules.
Complainant claimed that he is an individual with a disability within the
meaning of the Rehabilitation Act and that he was denied a reasonable
accommodation when he was refused a request for advance annual leave
for recovery from his broken wrist and when he was denied a �desirable�
reassignment.
We assume complainant is an individual with a disability in reviewing
his claim and conclude that he failed to show he was denied a reasonable
accommodation. Complainant's own statement indicates that he was granted
advanced sick leave for the purpose of permitting him to recover from
a broken wrist and that he was temporarily detailed to the Los Angeles
District Headquarters office to allow him to have closer proximity to
his physical therapist. Complainant's request for a reassignment to the
Los Angeles office on a permanent basis was not shown to be a reasonable
request because he did not demonstrate that he was unable to perform the
essential functions of his job on a permanent basis such that he needed
a reassignment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 15, 2003
__________________
Date