0120064530
02-27-2009
Daniel L. Chambers, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Daniel L. Chambers,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120064530 (formerly 01A64530)
Hearing No. 340-2005-00366X
Agency No. 042389
DECISION
On August 1, 2006, complainant filed an appeal from the agency's June 29,
2006, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission REVERSES the agency's final decision.
At the time of events giving rise to this complaint, complainant
worked as a Tax Examining Technician, GS-0592-06, Small Business/Self
Employed Compliance Field Operations, in Laguna Niguel, California.
On May 12, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of national origin1, disability
(hearing impaired), and in reprisal for prior protected EEO activity
[arising under the Rehabilitation Act]2 when:
(1) on March 15, 2004, his request for annual leave was disapproved and
he was charged as absent without leave (AWOL);
(2) on March 16, 2004, his supervisor issued a proposal for a 3-day
suspension; and
(3) he was suspended from duty from April 14-16, 2004.
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 but subsequently withdrew his request. Consequently,
the agency issued a final agency decision (FAD) pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
The FAD found that complainant is an individual with a disability because
his impairment substantially limits the major life activity of hearing.
The FAD further found that all responsible management officials were
aware of his hearing impairment. The FAD also assumed that complainant
is a qualified individual with a disability. The FAD found however,
that complainant failed to establish a prima facie case of disability
discrimination because there was no evidence that employees outside
his protected group who engaged in similar behavior were treated
more favorably. Addressing national origin, the FAD noted that even
assuming deaf culture is a national origin complainant cannot establish a
prima facie case because he provided no evidence that employees outside
his protected group who engaged in similar behavior were treated more
favorably. The FAD next addressed the basis of reprisal and found that
complainant had engaged in prior protected EEO activity. The FAD found
that the Group Manager and Territory Manager were aware of complainant's
prior activity, and that the time frame between the protected activity and
the adverse treatment was such that a retaliatory motive may be inferred.
The FAD then found that management articulated legitimate,
nondiscriminatory reasons for its actions. As to issue (1), the Group
Manager stated she did not grant complainant's request for leave on March
15, 2004 because a meeting with the Territory Manager in which complainant
was to receive a letter of proposed suspension had already been scheduled
for that time, and the services of an interpreter had already been
arranged. She stated that when he failed to appear for the meeting,
she charged complainant with AWOL. The FAD noted that in an attempt to
establish pretext, complainant stated that the Group Manager believes he
is a trouble maker because he files EEO complaints and management does
not listen to him because of his disability. The FAD concluded that
there was no evidence of a discriminatory motive concerning issue (1).
As to issues (2) and (3), the FAD found that management had provided
specific reasons for its actions. Specifically, complainant had engaged
in unprofessional behavior on six occasions between September 16, 2003
and January 14, 2004. The FAD indicated that complainant believes his
deafness was the reason for the suspension in that the Territory Manager
does not understand where he is coming from, and complainant believes
that hearing employees can get their points across while deaf employees
cannot because they have to rely on an interpreter to relay information
that sometimes gets lost in the translation. The FAD found no evidence
of pretext as to issues (2) or (3).
On appeal, complainant raises no new arguments, but has submitted a series
of emails between management and himself as well as some photographs
and other documentation. The agency requests that we affirm the FAD.
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 EEOC Management
Directive 110, 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").
Issues (2) and (3): Proposal to Suspend and Suspension
We begin our analysis by addressing the basis of reprisal. The statutory
retaliation clauses prohibit any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity. Petty slights
and trivial annoyances are not actionable, as they are not likely to
deter protected activity. More significant retaliatory treatment,
however, can be challenged regardless of the level of harm. As the
Ninth Circuit has stated, the degree of harm suffered by the individual
"goes to the issue of damages, not liability." Hashimoto v. Dalton,
118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of Navy,
659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination - whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]"). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
Where there is direct evidence of discrimination, there is no longer
the need to prove a prima facie case or facts from which an inference of
discrimination can be drawn. TWA v. Thurston, 469 U.S. 111, 121 (1985).
The McDonnell Douglas test is inapplicable where complainant presents
direct evidence of discrimination. Direct evidence is an action or
statement of an employer which reflects a discriminatory or retaliatory
attitude, and which correlates to the challenged act. See Caban-Wheeler
v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990). Once the trier of
fact has accepted the direct evidence, liability is established.
EEOC Policy Guidance on Recent Developments in Disparate Treatment
Theory, No. 915.002, July 14, 1992, Section III. In this case, there is
undisputed evidence that actions/statements were made by management which
reflect a retaliatory attitude, and which correlate to the challenged
acts. Specifically, management listed the following six "specifications"
(i.e. reasons) for why they were proposing suspension for complainant's
"unprofessional" conduct:
(1) You brought a complaint against your former manager [hereinafter
"FM"] in June 2003, alleging that she had intimidated, threatened and
harassed you. You alleged that she followed you around the building and
appeared in your work area. After an investigation it was determined
that the allegations were unfounded.
(2) On September 16, 2003, you delivered a letter to the DEEOAC
[Diversity and Equal Opportunity Advisory Committee] addressed to the
chair and vice chair in an attempt to have a member removed from the
DEEOAC board. You stated in the letter that, "It can be lead to influence
to worker for violence the workplace and hate crime for against the
disability employee [sic]." You made unfounded accusations against
[FM] for "depraved indifferences for against a disability employee
[sic]." However, there is no evidence of any wrong doing by the
managers. Your allegations caused dissension and discord within the
workplace.
(3) On September 18, 2003, you filed a TIGTA [Treasury Inspector
General for Tax Administration] compliant [sic] against a coworker
[hereinafter "CW"] from another work unit for harassing you in the
workplace by stalking, teasing and taunting you. After an investigation
it was determined that the allegations were unfounded.
(4) On September 18, 2003, you called [CW] "curmudgeonly and stupid
person." In the same email, you also stated "It can be escalate to
hate crime and violence the workplace for against me." This is another
accusation against the same coworker addressed in specification 3
above.3
(5) On December 12, 2003, you sent an email to your manager making
unsubstantiated and unprofessional comments. You stated that: A) "Most
smokers are hostile towards me because they share for information with
others." B) "Did you know [FM] have historic of mentally problems &
bullying for discriminated with [an employee], the wheelchair and
[another employee], the deaf person? [sic]."4
(6) On January 14, 2004, you threatened [CW] by sending a letter
that implied that she would be terminated - This was the same coworker
addressed in specifications 3 and 4 above."5
The letter of proposed suspension then stated: "The content of your
letters, emails and complaints were found to be unsubstantiated and
were inappropriate as to your hostile tone toward your coworkers.
Such conduct seriously impairs the efficiency of the Service and will
not be tolerated in the work place. Such conduct undermines management's
confidence in your ability to perform the duties required of your position
in an effective and professional manner. It creates a distraction and
unstable work environment for all employees."
The Commission finds that the agency's decision to suspend complainant
was motivated by retaliatory animus based on complainant's protected
EEO activity. The suspension letter specifically refers to several
instances of complainant's protected EEO activity, such as his filing of a
complaint with DEEOAC on September 16, 2003, and his opposition to alleged
disability-based discrimination by complaining to TIGTA on September 18,
2003 about harassment by CW which "violated of the Civil Rights [sic]".
Title VII prohibits employers from "discriminat[ing] against any of
[its] employees ... because [such employees have] opposed any practice
made an unlawful employment practice by this subchapter, or because he
has made a charge ... or participated in any manner in an investigation,
proceeding or hearing under this subchapter." 42 U.S.C. � 2000e-3(a).
This protection applies if an individual explicitly or implicitly
communicates to his or her employer or other covered entity a belief
that its activity constitutes a form of employment discrimination
that is covered by any of the statutes enforced by the EEOC. In this
case, complainant's act of complaining to management about alleged
harassment by a co-worker constitutes protected EEO activity, because
in so doing, he was clearly opposing what he believed, in good faith6,
to be discriminatory treatment or practices.
In this case, the suspension letter specifically cites to complainant's
protected EEO activity as forming the basis for such discipline.
Therefore, the Commission finds that complainant has provided direct
evidence that the proposed suspension and suspension were motivated
by retaliatory animus.7 It is clear that subjecting an employee to
discipline for filing complaints (even if subsequently found to be
unsubstantiated and which were deemed by management to be "inappropriate"
in tone) is reasonably likely to deter protected activity by that
individual or other employees.
Once a complainant proves that discrimination or retaliation was a
motivating factor, the burden of proof shifts to the employer to establish
that it would have taken the same action absent the discrimination or
retaliatory animus. See EEOC Policy Guidance, supra. Here, the agency
has not met its burden. In fact, in this instance, it is clear that
complainant's protected EEO activity was the primary (if not sole)
reason the suspension was issued. Accordingly, after a careful review
of this record, we REVERSE the FAD and direct the agency to comply with
the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency shall:
(1) Rescind complainant's AWOL for leaving work on March 15, 2004.
(2) Restore all pay and benefits lost while complainant was in AWOL
status and serving his suspension.
(3) Expunge all references to the suspension, proposed suspension,
and complainant's failure to attend the March 15, 2004 meeting, in
complainant's personnel records.
(4) Provide a minimum of eight (8) hours of EEO training, with special
emphasis on the area of reprisal, for all involved management officials
still employed with the agency.
(5) Consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the compliance officer. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides
not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
(6) The issue of compensatory damages is REMANDED to the agency. On
remand, the agency shall conduct a supplemental investigation on
compensatory damages, including providing the complainant an opportunity
to submit evidence of pecuniary and non-pecuniary damages. For guidance
on what evidence is necessary to prove pecuniary and non-pecuniary
damages, the parties are directed to EEOC Enforcement Guidance:
Compensatory and Punitive Damages Available Under � 102 of the Civil
Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). The agency
shall complete the investigation and issue a final decision determining
the appropriate amount of damages within 150 calendar days after this
decision becomes final. The final decision shall include appropriate
appeal rights.
POSTING ORDER (G0900)
The agency is ordered to post at its Small Business/Self Employed
Compliance Field Operations office, Laguna Niguel, California, copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
February 27, 2009
__________________
Date
1 Complainant identifies his national origin as "deaf culture."
2 In his formal complaint, complainant also alleged sexual orientation
as a basis. His complaint alleging sexual orientation discrimination
was processed under Agency No. TD 04-2021 N. The agency issued a
procedural dismissal on or about March 22, 2005. Complainant appealed
that decision to the Commission and we affirmed the agency's decision in
Chambers v. Department of Treasury, EEOC Appeal No. 01A53572 (September
6, 2005).
3 In this letter, complainant also stated "I feel that violated of the
Civil Rights because we are same handicapped [sic]."
4 In his formal complaint, complainant describes this as "participation
in the EEO process last December 2003."
5 In this letter, complainant included an excerpt from the "IRS
Restructuring and Reform Act of 1998" which states, in part, that an
employee would be charged with misconduct and terminated if found to
have violated another employee's civil rights under Title VII or the
Rehabilitation Act.
6 While the agency claims that complainant's allegations were unfounded
because no witnesses provided corroborating evidence, we find that a lack
of witness corroboration is not tantamount to proof that complainant
lacked a reasonable, good faith belief that he had been discriminated
against. We also recognize that employees and managers have alleged
that complainant has also perpetrated harassment and other inappropriate
behaviors against them. Even assuming such past incidents occurred the
Commission is not persuaded that this shows that complainant lacked a
reasonable, good faith belief that he had been subjected to discrimination
when he initiated the complaints which management cited in the suspension
letter.
7 We note that we also find retaliation as to issue (1) because of the
specific context in which the leave in question was denied: there is
no dispute that complainant requested annual leave in order to avoid
attending a meeting in which management planned to issue him the letter
of proposed suspension. As such, we find that the denial of leave and
AWOL charge are inextricably linked to the other challenged actions.
Additionally, we note that in light of our finding that the challenged
actions were retaliatory, we need not reach the question of whether they
were also motivated by discriminatory animus on the remaining alleged
bases, as complainant would not be entitled to any additional remedial
action.
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0120064530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120064530