U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerrod K.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120142417 Hearing No. 520-2013-00044X Agency No. IRS120374F DECISION On June 25, 2014, Complainant filed an appeal from the Agency's June 2, 2014, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Examining Technician at the Agency's Small Business/Self-Employed Division, Brookhaven Campus Compliance Services facility in Holtsville, New York. On February 28, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability2 (unspecified disabilities including leg and foot pain, diabetes, and glaucoma), and age (63) when: 1. On April 2, 2012, Complainant received an "Unacceptable" rating on his annual performance appraisal. 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 Equal Employment Opportunity Commission 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 issued a decision without a hearing on May 21, 2014, finding no discrimination. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination based on age, sex, or disability because he was unable to establish that he was treated differently than similarly situated coworkers outside of his protected bases. The AJ further found that, assuming arguendo that Complainant established a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its action, namely that Complainant's rating was due to his poor performance, and that Complainant failed to establish that the Agency's articulated reason was a pretext to mask discrimination. With regard to harassment, the AJ found that Complainant failed to establish a prima facie case because he failed to show any nexus between the alleged action and any of his protected bases. Finally the AJ found that even assuming Complainant established a prima facie case, the action complained of was insufficiently severe to constitute harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Therefore, we find that the AJ properly concluded that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact. Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is Complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). The AJ found that Complainant failed to establish a prima facie case of either sex, disability, or age discrimination. For purposes of analysis, however, we will assume, but do not find, that Complainant established his prima facie case of discrimination when he received an "Unacceptable" rating. We next find that the Agency articulated a legitimate nondiscriminatory reason for its action when Complainant's Manager (M: male, no claimed disability, 51 years at time of incident) averred that "[h]is rating was based on his unsuccessful performance as a tax examiner through November 2011. His performance was documented in his departure appraisal." Report of Investigation (ROI), Bates No. 100. Complainant's appraisal document itself noted that Complainant's performance was deemed to be a failure in the areas of: Customer Satisfaction-Knowledge, subsections Technical Guidance & Procedure, and Decision Making; and Business Results-Quality, subsection Processing: II Customer Satisfaction-Knowledge: B - Technical Guidance and Procedure - Fails. As a Tax Examiner, [Complainant] was failing in this aspect. He more than occasionally failed to follow all applicable and current IRM guidelines. Some examples of this were: entering an incorrect amount of earned income in the IRA deduction window; not creating Information Returns to assist the AUR system in determining the correct under reported income or over reported deductions; reducing under reported income by allowing a credit that was not on the original return; entering incorrect information in the self employment tax window. As a clerk, [Complainant] needs improvement in this aspect. As an example, [Complainant] failed to follow instructions for the refiling of tax returns which requires the cover sheet to be removed before routing to the proper clerical area. In this case, all tax returns had to be worked a second time. C - Decision Making - Fails. As a Tax Examiner, [Complainant] was failing in this aspect. He more than occasionally failed to interpret the information correctly. He needed assistance from his manager, lead or coach with making routine decisions. Some examples of this were: failing to manually access windows that do not appear automatically but are required to correctly compute the new tax; when to request documentation for previous adjustments made to the return; when to suppress a penalty and inappropriate use of paragraphs. As a clerk, [Complainant] needs improvement in this aspect. [Complainant] more than occasionally fails to interpret the information correctly as it pertains to the clerical operation. As an example, after receiving instructions for the procedure to RB screening batches, there are several cases which were incorrectly placed on the clerical wall. Cases closed PC 21 or PC WP [sic] should be removed from the batch during the RB [sic] process and placed on separate carts. Several cases closed with a PC 21 and PC WP have been found on the clerical wall. These cases belonged to batches worked by [Complainant]. IV Business Results-Quality: A - Processing - Fails As a Tax Examiner, [Complainant] was failing in this aspect. He more than occasionally failed to follow the appropriate IRM procedures to determine the correct actions to take to complete his cases. Some examples of this were: not interpreting the IRM correctly regarding research; determining an incorrect amount to give as credit towards an income type; determining that an income type is over reported and reducing other under reported income by that amount and entering incorrect amounts for income shown on the original return. As a clerk, [Complainant] needs improvement in this aspect. He more than occasionally fails to prepare, review and route all outgoing documents properly. One example relates to the placement of tax returns on the clerical wall after the RB process. The tax returns are required to be placed in a specific order after the RB of a work unit. When taken from the wall and placed on a cart, the foldering [sic] of the tax returns will then proceed in an efficient manner. Several batches prepared by [Complainant] were not done properly. The tax returns were not in the correct order, causing the foldering clerk to search the cart for the correct tax return. The additional work for the foldering clerk would not have been necessary if procedures were followed. ROI, Bates No. 120. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext to mask discrimination, or otherwise establish that discrimination occurred. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Following a review of the record we find that Complainant has failed to meet this burden. Complainant averred that he was on furlough for a portion of the rating period covered by the appraisal, and that the appraisal was an annual rating even though he changed positions during the rating period after being on a Performance Improvement Plan (PIP) for an extended period of time. See ROI, Bates No. 87. Complainant next averred that the annual rating was full of negative feedback and that he was coming back from a ten week furlough but was expected to recall all that was taught to him previously. See id. Complainant maintained that he had been told that his performance was declining during the rating period, but that the decline was due to the lack of review of his work. See id. Because his work was not adequately reviewed, he averred, he continued to proceed with it while unaware whether or not it was correct. See id. Complainant's arguments do not establish that the Agency's action was a pretext to mask discrimination. Nor has he otherwise shown that discrimination occurred. When asked why he believed his rating was due to his age, Complainant said "Yes, [his Supervisor (S: female, no claimed disability, 55 years at time of incident)] told me I would not come off review that tax season." Id. In response to the question asking why he believed his sex was a factor in the rating Complainant said, "Yes, [S] was the trainer, good friend" of M, who had to check Complainant's work when Complainant "reported [S]'s comments." See id. When asked why he believes that the rating was based on his disability, Complainant said "because I use a cane (but not when it gets in my way). People (many) make comments that I don't need it." Id. Such explanations do not establish that Agency officials harbored any animus towards Complainant's protected bases. To the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that the action taken by the Agency was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). On appeal, Complainant alleges that the Agency failed to properly investigate his complaint "due to budget constraints" and that "no one contacted Holtsville NY to get the information that employees were willing to give." Complainant's Appeal Statement, p. 1. In response, the Agency contends that it delegates authority to the: Complaint Mega Center via Section 1.2.64.17(2) of the Internal Revenue Manual ("IRM") to accept complaints of discrimination, prepare dismissal decisions, conduct complete and fair investigations, and conduct resolution attempts, including alternative dispute resolution programs. The Agency thus properly processed Appellant's claim. Appellant has provided no supporting documentation to support his claim that he was told no funds were available to conduct an investigation. The Report of Investigation ("ROI") compiled by the Complaint Mega Center also contains several declarations from employees in the Holtsville, New York post of duty. The Agency therefore conducted a proper investigation of Appellant's discrimination allegations. Agency Response to Appeal, p. 4. We note that a review of the ROI reveals that Complainant and other witnesses in Holtsville, New York were interviewed by the examiner. In addition, as the Agency points out, Complainant has presented to supporting evidence to corroborate his claim that the investigation was deficient, nor has he submitted any affidavits from employees he believes the investigator failed to contact. We therefore find that Complainant has not shown the investigation was deficient. On appeal, Complainant raises new allegations of harassment, denial of reasonable accommodation, denial of a step increase/raise and denial of training. These allegations are raised for the first time on appeal and hence shall not be addressed herein. If Complainant wishes to address these new claims he should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that discrimination occurred and we AFFIRM the final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 2, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142417 8 0120142417