01A24820
10-28-2003
Wayne L. Bacino, Sr., Complainant, v. John W. Snow, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Wayne L. Bacino, Sr. v. Department of the Treasury
01A24820
October 28, 2003
.
Wayne L. Bacino, Sr.,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A24820
Agency Nos. 99-2375; 00-2175
Hearing Nos. 270-A0-9116X; 270-A1-9126X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints of unlawful
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 accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Revenue Agent, GS-0512-13 at
the agency's Examination Division of the Gulf Coast District, Southeast
Region, in New Orleans, Louisiana, filed a formal EEO complaint on August
16, 1999 (Agency No. 99-2375), alleging that the agency had discriminated
against him on the bases of race (Caucasian), sex (male), color (White),
age (D.O.B. 10/6/46), and in reprisal for prior EEO activity when (1)
he was denied a Quality Step Increase (QSI) on or about March 30, 1999;
and (2) the group manager wrote a write-up of a field visitation he made
with complainant on May 21, 1999.
Complainant also filed a formal complaint on September 19, 2000 (Agency
No. 00-2175) alleging that the agency had discriminated against him bases
of race (Caucasian), sex (male), color (White), age (D.O.B. 10/6/46),
and in reprisal for prior EEO activity when (3) he was subjected to a
hostile work environment from September 1999 to April 2000.
At the conclusion of the investigations, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). The complaints were consolidated pursuant
to 29 C.F.R. � 1614.606. Following a hearing on both complaints, the
AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination for any of the bases alleged. Specifically, with regard
to the harassment claim, the AJ found that complainant failed to establish
that the alleged incidents of harassment were sufficiently severe or
pervasive to establish a hostile work environment.<1> With regard to
the QSI claim, the AJ found that complainant failed to establish a prima
facie case of discrimination because he did not demonstrate that similarly
situated employees not in complainant's protected classes were treated
differently under similar circumstances. With regard to the �write-up�
claim, the AJ determined that complainant failed to establish that he
suffered a present harm or loss with respect to a term, privilege, or
condition of employment for which there is a remedy. The AJ also found
that even assuming arguendo that complainant successfully establish a
prima facie case for each of the alleged issues, he ultimately failed
to establish that the agency's articulated legitimate, nondiscriminatory
reasons for its actions were pretexts for discrimination. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when: (a) he failed
to issue an �Acknowledgment and Order� in regard to Agency No. 99-2375;
(b) he determined that the agency made a good faith effort to obtain
the group manager, who had retired, as a witness for the hearing; (c)
he did not allow discovery regarding comparative data which would have
shown that complainant's qualifications were demonstrably superior to
those employees who received QSIs; (d) he did not allow complainant's
psychologist to testify about the harm caused by management; (e) he
determined witnesses to be credible; and (f) made erroneous factual
determinations. The agency argues that complainant's contentions on
appeal are without merit and requests that we affirm its final order
adopting the AJ's decision.
With regard to (a), (b), (c), (e), and (f), we find that the AJ properly
exercised his discretion. We note the AJ has broad discretion with
regard to the hearing, including discovery matters.<2> See 29 C.F.R. �
1614.109(e); Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, 7-8 to 7-14, (November 9, 1999). With regard to (d),
we note that the AJ properly bifurcated the hearing to exclude the issue
of damages until after a determination was made on the merits of the case.
Therefore, the exclusion of complainant's psychologist from the hearing
was proper.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
To prevail in disparate treatment claims such as these, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).
Based on the evidence of record, we find that AJ's determination that
complainant failed to establish pretext is supported by substantial
evidence. In so finding, we note that complaint has failed to present
evidence that any of the agency's actions were in retaliation for
complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race, color, sex or age. Additionally,
we find that with regard to the harassment claim, a prima facie case of
harassment is precluded based on our finding that complainant failed to
establish that any of the actions taken by the agency were motivated
by his protected bases. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We discern no basis to disturb the AJ's decision. 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 the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
October 28, 2003
__________________
Date
1 Although complainant withdrew two additional incidents, in addition to
the denial of the QSI, that comprised the original complaint of hostile
work environment, the AJ found that even taking those additional
incidents into account complainant failed to demonstrate that the
incidents were sufficiently severe or pervasive to establish harassment.
2 With regard to (c), we note that the record contains sufficient
comparative evidence between complainant and employees selected for a QSI.
Additionally, it is clear from the decision that the AJ took this evidence
into account. AJ Decision at 4.