0120082467
08-01-2008
Nelson Del Valle, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Nelson Del Valle,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120082467
Agency No. EEODFS-07-0025-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 24, 2008 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.
During the relevant time, complainant was employed as Revenue Agent,
GS-512-13, at the agency's Small Business/Self Employed (SB/SE) Bank
Secrecy Act (BSA) Group 5 in Miami, Florida.
On November 9, 2006, complainant filed the instant formal complaint,
subsequently amended. Complainant claimed that from September 2006
through February 2007, he was subjected to harassment and a hostile
work environment on the bases of national origin (Cuban-American), sex
(male), and in reprisal for prior EEO activity when1:
(1) on a continuing basis management assigns him a larger workload of
cases;
(2) on September 29, 2006, he was not selected to the position of Industry
Team Manager, GS-0512-14 (ATM3), pursuant to Announcement Number ATM 3
Program;
(3) on October 1, 2006, a co-worker made a disparaging remark about the
city of Miami and needing a passport to travel there;
(4) on October 26, 2006, he was notified that he could not act in the
manager's absence; and
(5) on February 6, 2007, during a workload review, management distorted
statistics and made unfair comparisons.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found no discrimination. Specifically,
the agency found that complainant did not establish a prima facie case of
disparate treatment and/or harassment on the bases of national origin,
sex, or retaliation. Regarding the harassment claim, the agency found
that complainant did not prove that he was subjected to harassment
sufficiently severe or pervasive so as to render his work environment
hostile.
Complainant's immediate manager (M1) disputed complainant's claims
that he was subjected to harassment and a hostile work environment.
M1 stated that in regard to claim (1), she denied assigning complainant a
larger workload than his co-workers. M1 further stated that she showed
complainant her inventory list "which reflects he was assigned fewer
cases than some of my other employees. I do not understand why the
complainant thinks he is assigned a larger workload than others under
my supervision." M1 stated that she also discussed the examination plan
with her group in a group setting. Specifically, M1 stated that the
purpose of sharing the examination plan with her staff "was to make them
aware of the rigorous examination plan established for the BSA Program."
M1 further stated that she never informed anyone under her supervision
as to how many cases they should close per month.
Regarding claim (2), one of the three panelists (P1) stated that there
were six candidates, including complainant, that were considered Best
Qualified for the position of Industry Team Manager. P1 stated that the
panel asked all the candidates the same questions "which were designed
to see what characteristics could be demonstrated from their past work
experiences (via their responses to the interview questions), as well
as to see how the applicants presented themselves." P1 stated that the
questions were related to leadership, employee satisfaction, customer
satisfaction and business results. P1 stated that during his interview,
complainant mostly talked about spreadsheets and computers. P1 stated "in
my estimation, he did not express or demonstrate any leadership. I seem
to recall that he was ranked the lowest of the interviewed applicants."
P1 stated that after the panel ranked the candidates, the ranking sheets
were forwarded to the Selecting Official (SO) for consideration.
SO stated that six candidates, including complainant, made the Best
Qualified (BQ) list. SO further stated that one of the six candidates
withdrew prior to the interview process which left five candidates.
SO stated that a review of the interview notes and ranking scores "show
that the complainant was ranked the lowest amongst the BQ applicants."
SO stated that he selected three candidates for the subject positions
based on their highest ranking scores. SO stated that he did not
discriminate against complainant based on his national origin, sex,
or prior protected activity.
Regarding claim (3), M1 stated that she was not aware that this "off
the cuff" comment that was allegedly made during a group meeting in
October 2006 was an issue until she was informed by the EEO Counselor
during a telephone conversation concerning complainant's complaint.
M1 further stated that she had discussed the "off the cuff" comment
with the employee "I saw [Complainant] give an angry look. The employee
denied making the comment during the meeting and stated he did not hear
anyone else make such a comment."
Complainant's second-level manager (M2) stated that when M1 informed him
of the incident, he instructed her to counsel the co-worker "who allegedly
made the remark and to address the group as a whole to inform them that
comments about race, ethnicity, etc., will not be tolerated even if said
in jest." M2 stated that M1 later informed him that she counseled the
co-worker and spoke to the group as a whole about this issue.
Regarding claim (4), M1 stated that complainant requested that she allow
him to act as a group manager in her absence. M1 stated, however, she had
some reservations about leaving complainant in charge of the group "since
I knew he didn't get along with several members of the group and has
in fact insulted several members of the group who no longer communicate
with him." M1 stated that she discussed complainant's request with M2,
and they came to an agreement that it would be more advantageous to have
one of the Grade 13 examiners from the Plantation, Florida port of duty to
act in her absence because there would be no travel expense to the agency;
and that the examiners have more program experience than complainant.
M1 stated that she and M2 also "discussed the fact that [Complainant]
has alienated many of his co-workers with rude behavior and demeaning
comments to them. He refuses to form good working relationships with
the other employees in the unit and demonstrates behaviors that imply
he is superior to all of his co-workers." Furthermore, M1 stated that
complainant does not engage in conversation with other group members.
M2 stated that M1 consulted with him concerning complainant's request
to act in her absence. M2 stated that M1 advised him of her concerns
she had with complainant being a disruptive force as a manager since he
does not get along well with the group as a whole. M2 stated that M1
had said that complainant was not responsive to her when she requested
information from him.
Regarding claim (5), M1 stated that on February 6, 2007, she met with
complainant for a workload review; however, she had no idea of any event
concerning "management distorted statistics" and "unfair comparisons."
M1 stated that after complainant claimed that he had been assigned more
cases than the other agents in the group, she informed him that it was
not true and "showed him inventory lists for all agents in the group
which reflected longer lists of cases than his list. I thought that I
proved to him that his assumption was erroneous."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for
its actions, which complainant did not prove were a pretext for
discrimination. Moreover, complainant has not demonstrated that these
reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally 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 of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994). In the instant case,
we find that the incidents complained of, even if true, do not rise to
the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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
August 1, 2008_______
Date
1 For purposes of clarity, the Commission has re-numbered complainant's
claims as claims (1) through (5).
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0120082467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082467