0120070212
09-26-2008
John M. Scheller, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
John M. Scheller,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120070212
Agency No. TD 06-2097
DECISION
Complainant filed an appeal with this Commission from the September 15,
2006 agency decision finding no discrimination.
In his complaint, complainant, a probationary grade level GS-9 Revenue
Agent, alleged that the agency subjected him to a hostile work environment
based on his sex (male) when:
1. On August 5, 2005, complainant was issued a letter advising him his
performance was unacceptable and that his performance would be reviewed
again in 30 days.
2. On August 5, 2005, complainant was issued an inaccurate case review.
3. On August 10, 2005, complainant's supervisor conducted an
on-the-job visit, during which she interrogated him and "nit-picked"
his performance.
4. From August 22, 2005 to August 30, 2005, complainant's supervisor
interrogated him, criticized his work, and made rude, sarcastic, and
intimidating remarks within earshot of his co-workers.
5. On August 31, 2005, complainant was issued a letter of termination
effective September 16, 2005.
6. On September 15, 2005, complainant's desk chair was replaced, a picture
of his daughter was removed from his desk, and his overhead cabinet was
rigged so confetti would fall on him when he opened the cabinet.
7. On September 15, 2005, complainant learned that management advised
employees he would be resigning.
8. On September 15, 2005, complainant was forced to resign.
After completion of the investigation, complainant was informed of his
right to request issuance of an agency decision or to request a hearing.
Complainant requested an agency decision.
To prevail in a disparate treatment claim such as this, 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 he or
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, nondiscriminatory 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 preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed where the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
The Commission notes that it is not sufficient "to disbelieve the
employer; the fact finder must believe the plaintiff's explanation of
intentional discrimination." St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519.
Because 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).
Claim 1
Complainant stated that the allegations that his performance was
dissatisfactory could easily be disputed by documented, written
evaluations from Internal Revenue Service (IRS) management and his
on-the-job instructors (OJIs).
Complainant's supervisor stated that complainant began working for the
agency on January 24, 2005, and that throughout Initial Basic Training 1
(IBT-1), complainant was learning the basics about the job. She also
stated that errors were overlooked with the view that complainant had
just started and that once he was informed of the mistakes that he was
making, the mistakes would be corrected in future cases. Complainant's
supervisor stated that it was also the goal of the agency to have
all trainees succeed. She also stated that when complainant returned
from IBT-2 at the beginning of April 2005, he had additional cases in
his inventory and the level of supervision was to start tapering off.
Complainant's supervisor stated that complainant's OJI attended several
examinations with the complainant and continued to assist him with his
training. She also stated that during this period, complainant began
closing IBT-1 cases and his OJI had to return cases to complainant for
corrections. Complainant's supervisor stated that complainant was slow
to close cases and had tremendous trouble with maintaining his inventory
and accurately utilizing the internal computer systems.
Regarding her evaluation of complainant for the period ending June
30, 2005, complainant's supervisor stated that at the time she rated
complainant, the only information upon which she had to base her
evaluation was a minimal number of IBT-1 cases and feedback from the OJIs.
Complainant's supervisor stated that the OJIs had expressed concerns about
complainant's performance but the OJIs felt that with positive feedback,
complainant would begin to understand the job. She also stated that based
on the information she had, she issued complainant a "straight 3," generic
annual evaluation. Complainant's supervisor stated that within a couple
of weeks after the evaluation was signed, the OJI came to her to discuss
complainant's inability to grasp the basics of the Revenue Agent position.
She stated that the OJI had begun letting trainees work on their own but
once complainant was left to work on his own, it became apparent he had
difficulty with the policies and procedures of the position.
For the January 24, 2005 to June 30, 2005 rating period, complainant
received an evaluation of "meets expectations" on all performance
aspects of his critical job elements (CJE), ratings of "3" on all CJEs,
and an overall rating of fully successful. The rating was signed by
complainant's supervisor and the Territory Manager, complainant's second
level supervisor.
Claim 2
Complainant stated that he was asked by his supervisor whether he had
reviewed the case review issued by the OJT and he told her that he
had not. Complainant stated that protocol was not followed by the OJT
with this review because he was not given the opportunity to review
and comment on the review prior to its submission to his supervisor.
Complainant stated that he noticed the review had numerous false
allegations and deficiencies.
Complainant's supervisor stated that on August 5, 2005, complainant was
issued a review stating that his performance was deficient in CJE Element
II, Customer Satisfaction - Knowledge; CJE III, Customer Satisfaction -
Application; CJE IV, Business Results - Quality; and CJE V, Business
Results - Efficiency. She also stated that the memorandum issued to
complainant informed him that he would have approximately 30 days to
improve but that he was unable to demonstrate that he had gained the
basic knowledge and skills necessary to successfully perform as a Revenue
Agent.
The OJI, a Revenue Agent, stated that he prepared a case review on
complainant on August 3, 2005, and that it was "right on the money."
He also stated that written feedback was submitted to complainant's
supervisor and the meeting on August 3, 2005, summarized complainant's
deficiencies on a particular case. He also stated that there was
continuous verbal dialogue and interaction with complainant on a daily
basis. The OJI stated that complainant's supervisor was informed on a
routine basis of complainant's work performance and that she occasionally
reviewed his case reviews and job visitation reviews.
The record contains the August 3, 2005 "OJT Case Review" prepared by the
OJI. Therein, the instructor stated that after six months on the job,
complainant was not progressing or growing. Concerning complainant's
performance, the OJI noted in the OJT Case Review that complainant
ignored simple, basic tax law and procedural issues. He also noted
that complainant developed issues poorly; that his organizational skills
were not improving; that complainant's lack of case file documentation
persisted; and that complainant was unable to ascertain simple facts.
The OJI also stated that it seemed that at times, the job demands were
too overwhelming for complainant and impacted on his development as a
Revenue Agent.
Claim 3
Complainant stated that his supervisor made an on-the-job visit on
August 10, 2005, during one of his cases and that she was miserable
to work with. He also stated that prior to leaving the office, his
supervisor interrogated him on the case, began to "nit-pick," and was very
mean and rude. Complainant stated that the harassment by his supervisor
continued at the Power of Attorney's (POA) office in which she questioned
him on every document provided by the POA. Complainant stated he was
intimidated by his supervisor and that he had difficulty maintaining his
composure and concentration. Complainant stated that the POA and his
staff could hear his supervisor belittle him while at the POA's office.
Complainant's supervisor stated that the incident described by complainant
was the second of two interviews that she had attended with complainant.
She also stated that she did not "nit-pick" his performance. She stated
that the POA had provided the general ledger of the taxpayer's accounts
to complainant and she questioned complainant about the ledger.
Complainant's supervisor also stated that complainant's inability to
recognize the importance of taxpayer information and how it related to
a tax return reflected complainant's incapacity to examine tax returns.
She stated that complainant was unable to analyze or understand the
information provided to him by the POA.
Claim 4
Complainant stated that his supervisor consistently harassed him.
He stated further that on several occasions, she would openly criticize
his work while at his desk, disregarding the fact that co-workers
were nearby and could hear her comments. Complainant stated that his
supervisor was sarcastic, intimidating, and rude and by scrutinizing every
word, comma, and decimal point he made, she was discouraging. He stated
that it appeared to him that his supervisor's mission was to catch him
making errors in order to build a case against him for termination.
Complainant's supervisor stated that claim 4 was false, noting that
her policy regarding discussion of an employee's performance was to
hold discussions held in an office and not a cubicle where others could
overhear. Affidavits of employees reflect that complainant's supervisor
did not discuss cases at employee's desks and that she spoke to employees
privately in her office.
Claim 5
The letter of termination, signed by the Territory Manager, notes that
complainant was terminated during his probationary period for performance
deficiencies. The letter reveals that complainant failed to demonstrate
that he could independently and timely conduct examinations and related
investigations of income tax returns that covered a diversified spectrum
of individual and business taxpayers; that he was able to complete
cases only with maximum assistance and clear direction from the OJI
and/or his supervisor; that complainant had poor interview skills
and had difficulty with follow-up questions necessary to adequately
obtain additional information; and that complainant was unable to
follow necessary procedural requirements throughout the examination
process of his cases. The letter also noted that complainant had
received intensive one-on-one training and that he had received formal
and informal counseling. The letter also reflects that complainant's
supervisor and the OJI had also conducted case file reviews, job visits
and inventory reviews and complainant failed to demonstrate an ability to
conduct income tax examinations pursuant to the Internal Revenue Manual
independently and timely.
Claim 6
Complainant stated that when he arrived at his cubicle on September 15,
2005, his desk chair had been replaced with an older, dilapidated chair
and the picture of his daughters was missing. Complainant stated that
the picture was later discovered in an empty overhead cabinet and that
on opening the empty cabinet, a sudden shower of confetti fell on his
desk. Complainant stated that someone had taped an envelope full of
confetti to the inside door of the cabinet door, so that when it was
lifted up the confetti would fall out.
The record contains affidavits in which the affiants state that the
incidents occurred as a prank and practical joke and was engaged in
by complainant's peers. The record also reflects that complainant's
supervisors were not aware of the incidents until February 2006,
when complainant's supervisor was informed of the incident by one of
complainant's co-workers.
Claim 7
Complainant stated that on September 15, 2005, when he informed fellow
Revenue Agent, Employee A that he was being forced out and therefore
resigning, Employee A stated that she was aware that he was leaving.
Complainant stated that he also learned that day that management had
been telling staff prior to September 15, 2005, that he had submitted
his resignation. Employee A stated that complainant approached her
and informed her that he was going to leave and that he was being
pushed out and it was a shock to him. Complainant's supervisor stated
that complainant's resignation was not known to other employees unless
complainant had shared that information with them. She stated further
that complainant's cases were transferred to other Revenue Agents
as soon as he had left. The OJI stated that he may have been told by
complainant's supervisor about the expected termination in August 2005,
and after complainant had been notified, he shared the information with
fellow Revenue Agent, Employee B.
Claim 8
Complainant stated that he submitted his resignation letter to the
Territory Manager and his supervisor. He stated that he was terminated
and forced to resign because the female IRS management in Town and
Country, especially his supervisor, did not want to retain males on staff.
Complainant stated that numerous male Revenue Agents were forced out or
demoted in the Town and Country Office and that males were the minority
in the Town and Country Office many of whom worked for his supervisor.
The record reveals that it was the agency's policy to provide complainant
with the option of resigning rather than being issued a termination
letter.
Upon review, the Commission finds that complainant has failed to show by
a preponderance of the evidence that the agency discriminated against him
by subjecting him to a discriminatorily hostile work environment which
forced him to resign. Regarding the alleged incidents of harassment, the
agency has provided legitimate, nondiscriminatory reasons for its actions
and complainant has failed to show that the agency's reasons were mere
pretext to hide unlawful discrimination. The record does not support a
finding that the agency was motivated by discriminatory animus when it
engaged in the actions that complainant alleges caused him to resign.
We find further that had complainant not resigned, he would have been
terminated because of his unsatisfactory performance and not for any
discriminatory reasons. The Commission also notes that although the
record indicates that complainant was initially given a satisfactory
evaluation and the record contains evidence from the OJT praising
complainant, complainant has not shown by a preponderance of the
evidence that his subsequent unacceptable performance evaluation
was motivated by unlawful discrimination. Moreover, complainant's
supervisor provided a reasonable explanation for the initial evaluation.
Regarding complainant's resigning, there is evidence that employees may
have known that complainant was resigning. However, the record also
indicates that complainant himself told employees that he was resigning.
Moreover, the evidence does not support a finding that the agency's
action in conveying any information was based on his sex. In addition,
the witness complainant identified as having been told that complainant
was resigning did not so indicate in her affidavit.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 26, 2008
__________________
Date
2
0120070212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120070212