0120100965
05-31-2011
Richard T. Ng, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Richard T. Ng,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120100965
Agency No. IRS-09-0162-F
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 3, 2009 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Internal Revenue Agent at the Agency’s Examination Division in
El Monte, Los Angeles County, California.
On January 9, 2009, Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of disability and reprisal
for prior protected EEO activity under Section 501 of the Rehabilitation
Act of 1973 when he was subjected to harassment from November 17,
2008 to February 10, 2009. In support of his claim of harassment,
Complainant alleged that he was given a lower performance appraisal;
he was accused of provoking his supervisor (Manager); he was excluded
from group lunches; denied a performance award based on his appraisal;
and issued a negative memorandum and letter of reprimand by the Manager.
The matter was investigated. The evidence gathered during the
investigation reveals the following. With regard to the alleged bases
of discrimination, Complainant described his disabilities as psoriatic
psoriasis and stress, mainly job-related. Complainant had filed 22 EEO
complaints against the Agency prior to the events at issue, and had
apparently also served as a representative to other employees filing
EEO complaints.
Complainant asserts that his annual appraisal for the rating period ending
October 31, 2008, was lowered to a 3.6 from the 4.0 he had previously
received. He states that he was told his appraisal was lowered because
he was not closing his cases in a timely manner. Complainant asserted
that it took him longer to close his cases because he devoted substantial
amounts of time to EEO related matters and the Manager would not reduce
his workload to accommodate his EEO activities. He also noted that one of
the critical elements in his appraisal (“Security”) was reduced from
“Exceeds” to “Met” because he had inadvertently disclosed taxpayer
information. Complainant concedes he did disclose the information, but
argues that he had made the same mistake in the past but had still been
rated as “Exceeds.” Complainant also alleges that, on January 22,
2009, he was denied a performance cash award for 2008 because of the
biased annual performance appraisal his received.
The Manager stated that Complainant’s performance rating was lowered
from the year before because his performance had declined in two critical
job elements. She concedes being aware of his prior EEO activity,
but asserts that it was his job performance deficiencies that resulted
in the lowered rating. She provided evidence that she had provided
Complainant with counseling throughout the rating period, as well as a
mid-year review, that reflected her concerns with his performance.
With regard to Complainant’s allegation that the Manager accused him
of “intentionally” provoking her, the Manager stated that after
Complainant filed an EEO complaint against her he kept asking her if
she was upset. She stated that she would reply in the negative, but
Complainant would mock her. She stated she did offer to discuss his
EEO complaint in hopes of seeking some resolution, but he declined
without his representative. She offered to schedule a meeting, but
no meeting date was ever agreed to. She denied taking any personnel
action against him because of his EEO activity. The record shows that the
Manager issued Complainant a memorandum in December 2008, reaffirming
his EEO rights as an IRS employee, while cautioning him to not affect
the workplace environment for other employees who did not want to be
involved in his personal situation. The Manager stated that several
of Complainant’s coworkers had complained to her that they did not
want to discuss Complainant’s EEO complaints with him. At least one
coworker corroborated this complaint. The record shows the Manager had
had group meetings in the past regarding privacy in handling a variety
of personal matters.
Complainant also alleges that the Manager sent him a negative memorandum
on December 19, 2008, ordering him to close cases within the prescribed
time deadlines. Complainant said he could not meet the deadlines
because he had to spend time on EEO matters which had priority over his
regular case load inventory. Management witnesses further testified
that they created an action plan for Complainant’s workload with his
participation in an effort to reasonably schedule time to complete his
cases. The action plan included time for Complainant to pursue his EEO
matters. However the actions were not completed as agreed. Therefore,
the memorandum was issued.
On February 20, 2009, Complainant alleged that the Manager issued him
a letter of reprimand for disobeying her direct order issued in the
December 19, 2008 memorandum instructing him to close cases within the
prescribed time deadlines. Complainant asserts this was unfair because
the deadlines were unrealistic, did not consider the complexity of the
cases and unforeseen obstacles. He also alleged he was involved with
EEO matters that had priority over his cases. The Manager stated that
Complainant provided her with an update of his work at the end of January
2009. She reviewed the information and it was clear that Complainant
was not meeting the agreed upon completion dates in the action plan they
had developed. After consulting with her superiors and Labor Relations,
she issued him the letter of reprimand.
Finally, the evidence indicates that one of Complainant’s coworkers
served as Acting Manager the week prior to Christmas 2008. Complainant
alleges that he was not invited to a group lunch by the Acting Manager and
believes it was in retaliation for his EEO activity. The Acting Manager
stated that the lunch was a spur of the moment event held with a group
of four friends. It was not an organized group activity. According to
management witnesses an official group lunch had been held earlier in the
month, and everyone was invited, including Complainant, who did attend.
Following the investigation, the Agency provided Complainant with a copy
of the investigation and a notice of his right to request a hearing.
The Agency indicated that Complainant received the report of investigation
on July 30, 2009. On October 5, 2009, Complainant informed the Agency
that he was beyond the time frame for requesting a hearing before an
EEOC Administrative Judge (AJ). As such, he would seek to pursue the
matter in U.S. District Court. Based on Complainant’s failure to make
a timely request for a hearing before an AJ, the Agency issued its final
decision finding no discrimination.
The Agency concluded that its management witnesses provided legitimate,
nondiscriminatory reasons for its actions. Further, the Agency determined
that Complainant failed to establish that the alleged incidents were
sufficiently severe or pervasive to constitute a hostile work environment.
This appeal followed. On appeal, Complainant asserted he established
that the Agency discriminated against him based on his prior protected
activity. Therefore, Complainant claimed that he should have been afforded
the opportunity to have his case heard before an EEOC AJ.
ANALYSIS AND FINDINGS
As an initial matter, we note that, on appeal, Complainant requested
a hearing before an AJ. The record included a copy of emails between
Complainant and the Agency in which Complainant conceded that he failed
to make a timely election for a hearing before an AJ. As such, we
find that the Agency correctly issued a final decision, pursuant to 29
C.F.R. § 1614.110(b), based on the evidence of record gathered during
the investigation. Nothing Complainant presented on appeal supports
vacating the Agency’s final decision and remanding the matter for
a hearing. Accordingly, we will review the Agency’s decision on the
merits of Complainant’s claims.
It is well-settled that harassment based on an individual’s
disability1 and prior EEO activity is actionable. See Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that:
(1) he is a qualified individual with a disability covered under the
Rehabilitation Act and/or engaged in prior EEO activity; (2) he was
subjected to unwelcome conduct; (3) the harassment complained of was
based on his disability and/or prior EEO activity; (4) the harassment
had the purpose or effect of unreasonably interfering with his/her 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 Flowers v. S. Reg’l Physician Serv. Inc., 247
F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247
F.3d 169 (4th Cir. 2001). The harasser’s 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).
Upon review of the record, we find that Complainant has not proven that
the events which formed the basis of his harassment claim occurred because
of his disability or in retaliation for his EEO activity. Management
witnesses have provided legitimate, non-discriminatory reasons for the
actions taken. There is absolutely no evidence in the record to tie these
actions to Complainant’s medical conditions. With regard to reprisal,
it is undeniable that Complainant has a long history of prior EEO activity
and that it was well-known by everyone in his workplace. The record
establishes that management legitimately discussed Complainant’s EEO
activity with him on a number of occasions in order to balance his right
to pursue those matters with the work responsibilities of his position.
Complainant is entitled to a reasonable amount of official time to
pursue EEO matters, and he has not proven that this right was denied
to him. However, as stated in EEOC’s Management Directive (MD)-110,
the Commission “considers it reasonable for agencies to expect their
employees to spend most of their time doing the work for which they
are employed.” In this case, the evidence indicates that management
attempted to work with Complainant in developing an action plan that
provided reasonable time for EEO matters, but also set deadlines for the
completion of his work assignments. However, Complainant did not abide
by the terms of this agreed to plan. Accordingly, in this case, we do
not find that Complainant has proven, by a preponderance of the evidence,
that management’s actions resulted from unlawful retaliatory animus.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to affirm the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination or retaliation
occurred.
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
May 31, 2011
__________________
Date
1 For the purposes of analysis, we assume Complainant is an individual
with a disability. 29 C.F.R. § 1630.2(g)(1).
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0120100965
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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