Wayne L. Bacino, Sr., Complainant,v.John W. Snow, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionOct 28, 2003
01A24820 (E.E.O.C. Oct. 28, 2003)

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.