0120093387
12-08-2009
Vincent J. Di Gioia, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Vincent J. Di Gioia,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120093387
Hearing No. 551-2009-00099X
Agency No. IRS080074F
DECISION
On August 7, 2009, complainant filed an appeal from the agency's July 31, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Revenue Agent at the Internal Revenue Service's Large and Mid-Size Business Unit facility in Seattle, Washington. On January 4, 2008, complainant filed a formal EEO complaint alleging that he was harassed on the bases of national origin (Hispanic/Puerto Rican) and age (53) when:
1. on November 7, 2007, the Complainant's soon-to-be acting team manager, M1, stated, "I am worried about your behavior," and "when are you leaving" during a conversation with complainant;
2. on November 30 and December 4, 2007, M1 (now acting team manager) delayed the review of one of complainant's cases;
3. on December 4, 2007, M1 (allegedly) made statements that separated complainant from younger, newer employees;
4. on December 19, 2007, M1 applied new policies and rules toward complainant without providing appropriate training;
5. on December 19, 2007, M1 (allegedly) stated, "you don't stand a chance," when complainant was discussing two vacancy announcements with her; and
6. on February 28, 2008, complainant was issued an "Expectations of Employee Memorandum."
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). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over the complainant's objections, issued a decision without a hearing on July 23, 2009.
Initially, in her thorough decision, the AJ determined that there were no genuine issues of material fact in dispute and then analyzed the complaint under both a theory of disparate treatment and hostile work environment harassment, concluding that complainant did not establish a prima facie case under both theories. The AJ found that complainant did not suffer any adverse action; that he did not show any of the claims were remotely linked to his national origin or age; and that they ultimately were simply complainant's expressions of his dissatisfaction with and opposition to, well established and routine agency policy and procedure. The AJ concluded that complainant's own conduct, especially with regard to M1, established that he was oblivious to the workplace conventions that impose on an employee the obligation to comply with managerial directives. Finally, the AJ concluded that, rather than establish harassment, complainant does no more than raise numerous objections to routine work-place decisions which are undisputedly well within the scope of managerial discretion.1
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted a lengthy statement on appeal. Therein, complainant argues that the EEO process was flawed and that the AJ pre-judged his case. However, most of his arguments focused on claims that were not before the AJ. For example, much of the discussion concerns a performance evaluation and how it adversely affected his chances for promotion. In addition, complainant includes a lengthy discussion of technical IRS procedures which has the ultimate effect of reflecting his lack of respect for M1 and his belief that M1 was not qualified to be his supervisor as he had almost thirty years of experience with the agency. Complainant also claims that he alleged retaliation, but review of his formal complaint indicates otherwise.
ANALYSIS AND FINDINGS
Upon review of the record, we find that this complaint is most appropriately analyzed as a claim of hostile work environment harassment. Complainant has to prove that he was subjected to a hostile work environment by establishing that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Moreover, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, national origin or age. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
We agree with the AJ that complainant fails to establish the elements of a hostile work environment claim. The AJ focused her analysis mainly on the fact that complainant was not subjected to conduct sufficiently severe or pervasive to create a hostile and abusive environment and that the evidence indicated complainant's own conduct may have created an unpleasant working environment for others, especially M1. We agree with the AJ. However, we also find that there is absolutely no evidence to link complainant's national origin with any of the incidents alleged, and the Commission rejects complainant's implied argument that his "cultural" way of expression somehow entitled him to act unprofessionally and insubordinately in the workplace. We also conclude that there is no evidence to link complainant's age with the alleged incidents, but to the extent that incidents (1) and (3) can be facially interpreted to have implicated complainant's age, the AJ found that both witnesses to the November 7, 2007 conversation attested to the fact that there was nothing about the conversation that could be characterized as hostile. Similarly, M1 admitted that she was aware that the new employees to whom complainant referred to as "Junior Agents" were "highly accounting-oriented, technical and picked out issues on their cases." We cannot construe this sole statement as creating a hostile work environment for complainant.
Despite the length of his appeal statement, complainant has not identified any genuine issue if material fact in dispute concerning the harassment at issue in this appeal. As such, we find that the AJ's issuance of a decision without a hearing was appropriate because complainant has not established that a hearing would elicit evidence from which a reasonable fact finder could find in his favor. We also discern no basis to disturb the AJ's legal conclusion that complainant failed to prove he was harassed on the bases of his national origin or age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
December 8, 2009
__________________
Date
1 We also note that the AJ issued an Order denying complainant's motion to amend the instant formal complaint to include additional incidents of harassment. The AJ found that the incidents were not like or related to those before her, and that they did not involve the same alleged responsible management official. Subsequently, complainant filed a formal complaint concerning those incidents, and the agency's procedural dismissal of that formal complaint is pending before the Commission in EEOC Appeal No. 0120100352.
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0120093387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013