01982115
11-23-1999
Terrence A. Daniels, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Terrence A. Daniels, )
Complainant, ) Appeal No. 01982115; 01982710;
) 01982712; 01983153;
v. ) 01983154; 01991331;
) 01993685
Robert E. Rubin, )
Secretary, ) Agency No. TD 96-1221; 96-1297;
Department of the Treasury, ) 96-1302; 96-1307;
(Internal Revenue Service), ) 97-1052; 97-1119;
Agency. ) 97-1145; 97-1201;
) 97-1339; 97-1397
)
DECISION
Complainant timely initiated appeals from seven final agency decisions
concerning his complaints of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
Complainant claims he was retaliated against when:
(1) he was denied a detail into a night-shift management position for
the 1996 filing season;
(2) he was issued a Memorandum of Alternative Discipline on March 28,
1996, for a memorandum which he wrote and management perceived as
threatening;
(3) on April 24, 1996, he was issued an official Letter of Reprimand
for the same allegedly threatening memorandum;
(4) on June 14, 1996, he received a low evaluation rating for the period
between July 1994 and April 1996;
(5) he was reassigned from the night shift effective June 23, 1996;
(6) he was charged with Absence Without Leave (�AWOL�) on October 15,
1996;
(7) he was not given the opportunity to work nights between September
15 and 20, 1996;
(8) management refused to certify him for a management-entry-level
position for the 1997 filing season;
(9) on October 17, 1996, he was issued an official Letter of Reprimand
for not timely paying his 1993 taxes;
(10) he was involuntarily reassigned from the Processing Division to
the Compliance Division; and
(11) he received a low departure evaluation rating on May 10, 1997,
and a low annual evaluation rating on June 3, 1997.
This appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decisions are AFFIRMED.
The record reveals that complainant, a Scanner Operator at the
agency's Cincinnati Service Center in Covington, Kentucky, filed
the ten above-listed formal EEO complaints with the agency, alleging
discrimination as described above. The agency accepted the complaints for
processing, and at the conclusion of each investigation, complainant was
granted thirty days to request a hearing before an EEOC Administrative
Judge or an immediate FAD from the agency. Complainant requested that
the agency issue a FAD for each complaint.
All of the FADs concluded that complainant established a prima facie
case of retaliation because complainant had engaged in the EEO process
and management was aware of this at the time of each adverse action.
The FADs then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that:
(1) complainant was not selected for the detail because the selectee
had more years of experience in the unit, a higher evaluation, better
management potential, and an earlier service computation date than
complainant;
(2) complainant received the Memorandum of Alternative Discipline
because management felt that complainant's March 5, 1996 memorandum to
his Section Chief contained threats to management as well as slanderous
and inflammatory statements;
(3) after complainant refused to accept the offer of alternative
discipline issued on March 28, 1996, management issued the Letter
of Reprimand as discipline for the statements in his March 5, 1996
memorandum;
(4) under an agreement with the union, all employees in complainant's
unit were to receive the same ratings received in their last evaluation
until sufficient data was gathered to validate new standards;
(5) complainant's detail to the night shift was temporary and at the end
of the filing season, it was determined that the night shift could only
support one Scanner Operator;
(6) after discussion with both the agency's EEO Office and General Legal
Services, management informed complainant that he would not be granted
administrative leave to pursue his federal district court case against
the agency, but that he could request annual leave;
(7) due to increased volume, management asked a manager and Scanner
Operator from the day shift to work nights for the week in question,
and the highest service computation date was used as the method for
selecting the Scanner Operator to work the night shift;
(8) complainant was not certified for a management-entry-level position
because his supervisor rated him as needing development in the necessary
focus areas;
(9) complainant was issued the Letter of Reprimand because he failed to
respond to three notices informing him that he was delinquent in paying
his 1993 income taxes and because he paid his taxes three months late;
(10) complainant's involuntary reassignment was due to his inappropriate,
intimidating and threatening behavior toward his supervisors, and was
a means of providing him a fresh start in a new branch; and
(11) complainant's departure rating was based on his performance and his
new supervisor relied on his departure rating to determine his annual
rating because complainant had only worked one month in her unit during
the rating period.
In the pretext analysis, the FADs found that complainant failed to
offer evidence demonstrating the agency's reasons for its actions were
a pretext for unlawful retaliation.
On appeal, complainant contends that in each of his complaints before
the Commission, the agency failed to timely issue a FAD within sixty
(60) days of receiving notice that complainant requested a FAD.
Complainant requests that the Commission find the agency in default for
its untimeliness. Also, complainant contends that the investigation
for appeal number 01993685 was improper in that witness statements were
taken in the form of unsworn declarations instead of sworn affidavits.
In response, while it apologies for its tardiness, the agency contends
that there is no legal authority for the Commission to issue a default
judgment for an untimely FAD. Additionally, the agency contends the
Commission's regulations at 29 C.F.R. �1614.108(b) allow the agency to
conduct an investigation in any matter that efficiently and thoroughly
addresses the matters at issue.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996), and Hochstadt v. Worcester Found. 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), the Commission finds that complainant failed to establish by
the preponderance of the evidence that he was subjected to retaliatory
disparate treatment. In most circumstances, complainant's allegations
are only supported by his assertion of retaliation and the proximity
between the agency's adverse actions and complainant's EEO activity.
Without more, we find that complainant failed to present sufficient
credible evidence rebutting the agency's articulated nondiscriminatory
reasons.
While the agency treated each of complainant's complaints as a separate
allegation of discrimination, we find that the agency should have combined
all of complainant's complaints and rendered a decision addressing
complainant's main contention, retaliatory harassment. Since the FADs
never addressed complainant's allegation of retaliatory harassment,
we will consider it in this decision.
In order to prevail on his claim of retaliatory harassment, complainant
must demonstrate that: 1) he engaged in protected activity; 2) he was
subjected to severe or pervasive harassing conduct; i.e., that he has
been subjected to more than a single incident or a group of isolated
incidents of harassing conduct<2>; and 3) the harassing conduct was based
on his participation in EEO activity. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9.
In reviewing the evidence, the Commission finds that complainant failed to
present sufficient credible evidence establishing that he was subjected to
retaliatory harassment. We find that the allegations, taken as whole, are
not sufficiently severe or pervasive to constitute a hostile environment.
While complainant asserts that the agency's actions were harassing,
we find that the evidence supports the finding that actions in question
were based on legitimate, nondiscriminatory management concerns and not
based on complainant's participation in EEO activity. Thus, we find
that the agency's actions do not constitute harassing conduct.
As for complainant's request for default judgment, we find that the
regulations do not permit the Commission to enter default judgments
for untimely FADs. However, we remind the agency of its obligation to
timely issue FADs in the future. With regard to the investigation for
appeal number 01993685, we find nothing improper with the investigation
or the unsworn declarations. Moreover, at the end of each document,
the declarant has signed an oath affirming under the penalty of perjury
that the foregoing declaration is true and correct.
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 each of the
agency's final decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
November 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 In addition, the Commission has stated that �[t]he statutory retaliation
clauses prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. Of course, petty slights and trivial
annoyances are not actionable, as they are not likely to deter protected
activity.� EEOC Notice No. 915.003 (May 20, 1998), Compliance Guidance
on Investigating and Analyzing Retaliation Claims.