0120092440
02-04-2011
Phillip A. Nagle, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Phillip A. Nagle,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120092440
Agency No. IRS-08-0585-F
DECISION
Complainant filed a timely appeal from the Agency's Final Agency Decision
(FAD) dated April 3, 2009, concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the reasons that follow, the Commission
AFFIRMS the Agency's FAD.
ISSUE PRESENTED
The issue presented in this appeal is whether Complainant showed that
the Agency's reason for terminating him during his probationary period
were pretext for age discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Internal Revenue Agent (IRA), Small Business/Self Employed Division,
at the Agency's facility in Mt. Vernon, Illinois. On July 6, 2008,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (64) when: he was terminated from the
Agency on May 30, 2008, during his probationary period. Following an
investigation, Complainant did not respond to the Agency's Notice, and
the Agency issued the FAD, concluding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.
Complainant began his service with the Agency on January 22, 2008.
In the notice of termination, dated May 28, 2008, the Agency stated
that Complainant's performance in Critical Job Element (CJE) 2
(Customer Satisfaction - Knowledge), CJE 4 (Customer Satisfaction -
Application), and CJE 5 (Business Results - Efficiency) was unacceptable.
In particular, the letter stated (i) that Complainant failed to
demonstrate a working knowledge of examination procedures, examination
techniques, and preparation of the required work papers, as shown by
a review of his case files; and (ii) that he did not follow Agency
procedures and/or guidelines and did not prepare documents properly to
ensure a proper record and correct processing of his cases. In addition,
the letter noted that his two coaches and managers tried to assist him,
but he "consistently" paid little or no attention, did not follow through
with directions, nor did he demonstrate the "independence required for
the position."1
According to Complainant, in late February 2008, S1 informed him that
he was behind in his expected work production. He attended a four-week
training session in Chicago and contended that he performed very well,
although he conceded that evaluations from the instructors may have
contradicted his opinion. Complainant believed that S1 intended to
terminate him as soon as possible and not give him a fair chance.
He stated that his coaches did not assist him well. In a letter dated
April 14, 2008, the Agency advised him that his work product was not
meeting expectations nor progressing well and that he had fallen behind.
In his investigation affidavit, Complainant's responded to the Agency's
reasons for his termination, stating he disagreed with the Agency's
evaluation of his performance, he asserted that he conducted his
examination well, by gathering the facts applying his "excellent"
techniques; that he changed his worksheets after his second coach
instructed him about them, and that he had not completed enough work
for management to reach a determination with regard to his ability to
examine and close cases.
Complainant also identified another employee (E1) (female, 25) whom
he claimed was similarly situated to him and treated more favorably,
as illustrated by an event in February, when S1 stated that she did not
have time to work with him, but spent two hours with E1 on a work-related
issue and when one of his coaches spent two (2) hours with E1 working
on deductible legal expenses. Complainant also contended that E1 failed
the on-line training testing, but not removed.
S1 denied that Complainant's age was a factor in his termination and
that she acted solely on his inability to perform and complete the job.
She explained that she made her decision based on his poor performance,
even after he had extensive training; that Complainant did not follow
Agency procedures; that he disclosed taxpayers' confidential information
in his emails; that he could not maintain his time sheets; that he would
schedule two appointments at the same time; and that he could not keep up
with Agency work processes and time demands. She believed Complainant
was unable to accept his inadequacies and, instead, blamed others for
his deficiencies.
S1 described an occasion in May 2008, when she accompanied Complainant on
a field appointment to study his work in the field; she stated that she
observed that Complainant provided only a cursory review of the documents
the taxpayer's representative provided him and was rude, that he did not
complete a quality audit, and that he appeared to be unaware of how to
proceed with the examination. She described the event as "a disaster" and
that she was forced to intercede to stop Complainant from providing his
personal point of view rather than the law and the legal requirements.
CONTENTIONS ON APPEAL
Complainant did not provide comments on appeal.
The Agency requested that we affirm its decision.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering an appellate decision from an Agency's
FAD is de novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); see also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (November 9,
1999) at Chapter 9, � VI.B.
Legal Framework
In his complaint, Complainant alleged disparate treatment based
on age. The legal analysis in a disparate treatment claim such as
this is a three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. 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). In general,
Complainant must establish a prima facie case of discrimination by
demonstrating that he 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).2 Once
Complainant does so or we so assume, the burden moves to the Agency, which
must articulate legitimate and nondiscriminatory reasons for its conduct.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
see U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983). After the Agency presents its reasons, the burden of proof moves
back to Complainant. To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination.3 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).
The elements of the prima facie case of discrimination are determined by
the individual circumstances of each case and the bases of discrimination
alleged. Generally, regardless of the specific action(s) at issue,
Complainant can establish a prima facie case of discrimination by
showing: (1) that s/he is a member of a protected group; (2) that s/he
was subjected to an adverse action; and (3) that there is an inference of
discriminatory motivation. Potter v. Goodwill Industries of Cleveland,
Inc., 518 F.2d 864, 865 (6th Cir. 1975); O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996); Enforcement Guidance: O'Connor
v. Consolidated Coin Caterers Corp., n. 4 (September 18, 1996).4
Under the ADEA, it is "unlawful for an employer...to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age." 29 U.S.C. �
623(a)(1). When a complainant claims unlawful age discrimination,
the agency's "liability depends on whether the protected trait of
age actually motivated the employer's decision." Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper
Co. v. Biggins, 507 U.S. 604,610 (1993)). ("that is, [Complainant's]
age must have actually played a role in the Agency's decision making
process and had a determinative influence on the outcome"),
Legal Analysis
In the matter before us, we will assume, for purposes of further
discussion only, that Complainant established a prima facie case of
discrimination based on age. Next, we move to the second step in our
analysis and consider the Agency's articulation of its reasons for
Complainant's termination. In the letter of termination, as described
above, the Agency explained that Complainant did not demonstrate a working
knowledge of examination procedures, did not properly prepare detailed
case history worksheets, did not follow Agency guidelines and procedures,
did not use proper examination techniques to gather information, did not
submit acceptable closing documents, and did not present accurate time
sheets. We find that the Agency articulated legitimate, nondiscriminatory
reasons for Complainant's termination and that its reasons are supported
by the record herein.
In asserting pretext, Complainant maintained that he performed well
and that he had not completed enough work for a true determination of
his abilities. He also contended that another problem employee, E1, was
treated more favorably than he, in that, she received more help from S1
and the coaches. We find that Complainant has not demonstrated pretext,
because he has not shown that the reasons articulated by the Agency
for its action were not its true reasons, but were taken in order to
discriminate against him due to his age. As to Complainant's assertions,
mere statements and speculations, without probative evidence, will not
suffice to demonstrate pretext. The record shows that he did not perform
well. The Agency presented copious examples of his deficiencies over the
period of his employment. E1 can not be considered to have been similarly
situated to him, because she completed all training successfully, and,
according to S1, her work performance was progressing well.5
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because Complainant
has not provided any probative evidence to support his claims and has
not shown by a preponderance of the evidence that the Agency's reasons
were pretext.
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
___2/4/11_______________
Date
1According to the record, his supervisor (S1) and others advised him on
several occasions that his work performance was not meeting acceptable
standards. S1 stated in a letter dated April 14, 2008, that his time
input, including the activities performed, was incorrect and that a
review of his case files reflected that Complainant was not following
Agency procedures or maintaining a calendar.
2 Evidence to establish a prima facie case of discrimination may
include the showing that a similarly situated employee outside of
the Complainant's purview (his age) was treated more favorably.
The Commission has long held that, for employees to be considered
similarly situated, they must report to the same management officials,
and all relevant aspects of their employment must be the same as those
of the comparative employee. O'Neal v. USPS, EEOC Request No. 05910490
(July 23,1991).
3 Pretext is a sham or disguise for discrimination. A demonstration
of pretext requires Complainant to show that the Agency's explanations
for its actions were not the true reasons and that its actions were
influenced by legally impermissible criteria, i.e., animus based on
his age. See St. Mary's, above. Complainant must demonstrate pretext by
showing, by a preponderance of the evidence, that the reasons offered by
the Agency are without a factual basis and not the actual motivation for
its actions and that the Agency proposed his removal because of his age.
Thus, based on the record and relevant statements from the parties, it
is the Commission's duty as the adjudicator in this matter to determine
whether there exists sufficient and preponderant evidence demonstrating
that the Agency's explanations for its adverse actions were false or
baseless, that they constituted pretext for discrimination, and that
a decision-maker might reasonably conclude that the Agency unlawfully
discriminated against the Complainant. Reeves v, Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
4 This document and other information is available on the Commission's
website at: http://www.eeoc.gov.
5 Although Complainant noted an incident where S1 did not assist him,
but subsequently assisted E1, we do not find that this rebuts the
preponderance of the evidence in the record that his performance led to
his termination, not age bias.
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0120092440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092440