0120122494
11-14-2012
Andres L. Perez, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Andres L. Perez,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120122494
Agency No. IRS-11-0492-F
DECISION
Complainant filed a timely appeal from the Agency's final decision, dated April 30, 2012, concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent at the Agency's Small Business/Self-Employed Division facility in New Windsor, New York.
A review of the record reveals that Complainant had filed three prior EEO complaints against Agency management. According to his complaint, the last EEO activity occurred in March of 2010. The record also shows that Complainant advised his supervisor on May 5, 2011, that he intended to file another EEO complaint.
On July 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On February 14, 2011, management denied Complainant's request for a change to his leave status on February 7, 2011;1
2. On May 9, 2011, Complainant's manager sent him an email, forbidding him from expressing his thoughts or raising questions about her behavior and actions;
3. On or around May 10, 2011, management denied Complainant's request for postage in order to mail correspondence from his flexi-place location;
4. On July 15, 2011, management omits Complainant when recognizing employee performance;
5. On July 21, 2011, Complainant received an unwarranted mid-year review;
6. On July 29, 2011, his supervisor told Complainant that he was "unprofessional" when Complainant sent a group email message in response to the supervisor's failure to recognize his performance;
7. Complainant directed Complainant to come to the office for a meeting on October 13, 2011, but did not reimburse Complainant for his travel costs and denied his request for a union representative to attend the meeting;
8. In October 2011, management required Complainant to provide unnecessary information (his phone number) before allowing him to continue working from alternate locations using flexi-place; and
9. On or about October 13, 2011, management issued Complainant a performance review in which his ratings in two critical job elements were reduced without cause.
Claim One
The pertinent record shows that the Agency denied Complainant's request for administrative leave because administrative leave was not typically provided for a closed Office of Workers Compensation case; and the supervisor believed that the matter was closed.
Claim Two
The supervisor's email (on May 9, 2011) followed Complainant's statement to his supervisor that he intended to file another complaint. The managers acknowledged that an email was sent to Complainant instructing him to refrain from sending any more emails because management had already responded to Complainant's questions.
Claim Three
The record shows that management denied Complainant's request for postage in order to mail correspondence from his flexi-place location. The record does not show that other employees were provided postage.
Claim Four
The supervisor averred that the co-worker was recognized for work on a project and Complainant did not show that he deserved the recognition for the project.
Claim Five
The supervisor averred that she provided Complainant with the mid-year review which reflected the supervisor's perception of Complainant's contribution and his failure to meet her expectations. Complainant challenged the supervisor's evaluation, but he did not provide evidence to rebut the supervisor's evaluation or to prove it was unfounded.
Claim Six
The supervisor did tell Complainant that he was "unprofessional" when he sent a group email complaining about the supervisor's refusal to credit his performance. The record does not show that other employees sent similar emails and were accorded different treatment.
Claim Seven
The record shows that the supervisor did not reimburse Complainant for his travel expenses because the Agency does not pay employees for their travel to and from the office. The Agency did not permit union representation at the meeting for any employee.
Claim Eight
All employees were required to provide phone numbers when working at their flexi-place locations. The supervisor asked Complainant to provide his phone number.
Claim Nine
The supervisor averred that her rating reflected Complainant's level of performance and was based on the information that was available to her at the time of the rating. The record does not include documentation that the supervisor failed to credit Complainant on certain projects because of his prior EEO activity. The record also shows that the supervisor issued similar ratings to other employees.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant failed to show a nexus from his prior EEO activity in March of 2010 and the alleged incidents in 2011. Next, the Agency found that Complainant failed to prove that the alleged incidents were based on his EEO activity and the Agency concluded that he was complaining about "the ordinary events of the workplace [which] do not amount to a hostile work environment based on retaliation."
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, Complainant contends that the Agency erred in concluding that his request for a hearing was untimely, but he does not provide any explanation as to why he did not submit a timely request. He also argues that that he proved Title VII retaliation by his supervisor because he continued to work in a consistent manner and his supervisor did not tell him of any problems prior to the mid-year rating. He also disputes the Agency's conclusion that the alleged events represent ordinary workplace interactions. He argues that the "less than amicable environment" was because he was "an employee currently [engaged] in a court proceeding" against his manager. The referenced court proceeding relates to a February 7, 2011 court hearing regarding his claim of a work related injury.
Title VII at Section 717(a) requires that all employment actions be made free from unlawful discrimination, including reprisal. A complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
To prove harassment, a complainant must show that he was subjected to conduct related to his prior EEO activity and the harassment had the purpose or effect of unreasonably interfering with his work performance or created an intimidating, hostile, or offensive work environment.
In this case, the record fails to show that there was a nexus with any protected activity. The activity occurred nearly a year before the first alleged 2011 incident. In addition, the alleged events are neither severe nor pervasive to show that a hostile work environment existed. Assuming for purposes of analysis, however, that Complainant established the elements of his claim, the record shows that the Agency asserted a legitimate non-discriminatory reason for each of its actions; and Complainant failed to show that those reasons were a pretext for retaliation.
Moreover, the record contains no evidence that the Agency's stated reasons were a pretext for retaliation. The preponderance of the evidence shows that the actions were based on the Agency's policies or the supervisor's perception of Complainant's performance.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Decision.
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 tends 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
November 14, 2012
__________________
Date
1 The Agency decision referenced the date as May 4, 2011, but the record shows Complainant referred to February 14, 2011 as the date of the incident.
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0120122494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122494