mr quick where was a revenue agent with the i r s from june twenty second two thousand and nine until his terminations january eleventh two thousand and eleven he had f claims of discrimination on poor they're based on race black is national origin nigerian and his disability he suffered from depression and panic disorders one of the issues in the case is the filing of his e o complaints federal sector employees for the very short window in which they can file their claims of discrimination under twenty nine c f r a sixteen fourteen part one hundred five they have forty five days to file a claim of discrimination from the time that they would have recently discovered that the discriminatory acts occur but this is extremely short compared to state law or even federal law for private sector employees where they have a one hundred eighty days or up to three hundred days in which to file such a complaint with the e e o c so as a result a lot of times certain claims of discrimination may not necessarily be included because they were untimely or outside of the time frame in which the federal employee filed their e o complaint however one exception to that is when you claim hostile work environment and under national r passenger vs morgan the supreme court held that as long as one incident was within the statutory limitations then you could bring other incidents of hostile work environment or harassment in as a part of the claim as long as one incident was with those limitations for federal sector employees it's even more important because of the short timeframe in which they have to father claims in this situation mr quick were filed his first e o complaint with the are or may not there are two different stages to that there's the informal complaint stage which is what initiated the complaint and that's what he filed on june twentieth twenty ten in the record through the notice he received a notice on december twenty first two thousand and ten and signed forward on the twenty second of december two thousand and ten and then sent the application or the form to the  counselor on the twenty seventh of december twenty ten and it was received on the twenty ninth of december two thousand and ten in the form itself has a date of november thirtieth two thousand and ten but mr quick where filled out the form the justify that he received on the twenty first of december and there's no evidence to the contrary as to when he received it because six hundred fourteen part one o six says it's not the date of the notice it's when it was received that the fifteen day timeframe begins to run so he says he received on the twenty first he signed for on the twenty second as having received it in the senate on the twenty seventh so that issue i believe is one that's moot as far as the time is of his filing of his formal complaint part of the issue before that though was whether or not his earlier complaints of harassment could come in as part of his claim when he filed in june on june twenty twenty ten our assertion is that may thirty first two thousand and ten was an incident of harassment when his boss told him that he was going to terminate him without actually giving a notice or or doing anything else beyond that prior to that in april two thousand and ten his supervisors say mr shaw had made comments about his accent about his ability to communicate with other persons taxpayers and so forth and then earlier than that in september of two thousand when mr quick were received his commission to begin his work as a revenue agent mr shaw made similar comments about his ability to communicate told him not to ross taxpayers and would he be able to talk to judges lawyers and accountants and so forth so those were all brought in as a part of mystery quick where is claims of hostile work environment and that was an issue that was raised by the judge as to whether or not those claims could actually actually be acted on as part of a hostile work environment claim and are certain is that they can be because of the supreme court case that governs that other four issues of discrimination that mr equipped were brought as a part of his complaint against the department of treasury the first is discrimination based on race black and his national origin nigerian when it came to the failure to promote him in october of tw as his eventually terminations in january two thousand and eleven the second plane that he brought was one of hostile work environment based on race and national origin and his claim is that the harassment began as early as september of twenty nine two thousand and nine and did not end until he was actually terminated this third claim of discrimination was retaliation that he had engaged in protected activity as early as july two thousand and nine when he first requested a reasonable accommodation as the court aware there are two types of types of protected activity one where you participate in the employment discrimination process another one we'll post in front of this criminal asian reason a combination requests fall into the first category of participation when you are supposed to engage in the interactive process in order to hopefully get a reason accommodation which you have to establish that you are a qualified individual with a disability they provided accommodation they did but that was not until september of two thousand and ten and the management officials both mr michael simmons and mr ken the shah both first they said that they did not or were not aware that he had requested a reasonable combination of accommodation as early as two thousand and nine when in fact there is a letter in or email in the record that shows where mr simmons had directed m physician that requested certain accommodations including using headphones more secluded space to work as well as additional time to complete tasks that was provided but his performance still didn't improve he still had very very bad performance records and he was applying the tax code incorrectly well that is certainly there are certain that he was applying the tax code incorrectly he was getting what are called ems on me standards all way up until about february two thousand and ten and then after he had requested is accommodations and made it known that he was requesting them that's when it appeared that his performance ratings started to drop to f s and that's part of his contention is that it was not until after he had read requested a reason accommodation that he began receiving the f s on his appraisals as a part of a retaliatory effort by his boss to getting fired it was following that that we see the comments of april two thousand and ten and then the threats of terminations in both made twenty ten as well as you know twenty ten and i'm not and i'm not saying that there weren't some performance issues with mr quick where part of his claim is that there was a white code worker who had similar types of performance issues sure that certainly up to the october twenty ten timeframe when they were both  appraised at having or needing maximum supervisory levels but mr kalam jason cowden the white coworker was promoted to g s eleven whereas mr quick where was not and that was part of his claim is that he had another person with the training class with him who was not nigerian who was not black who did not suffer from a disability who had similar types of issues but was promoted regardless but does that mean similar types of issues performance issues where you have well he had received some ems people i'm talking account now have received  have received i guess a smattering of f s but he was judged as having or needing maximum supervisor levels in other words he needed maximum supervisory levels are to do his job as opposed to the third person that went to train class mr allen who did not require that mr cowen did and that was a result of some of the forms issues that he was experiencing along the way as well after he got the supervisor how after this performance records increase i and then finally the last issue that mr equip where raises is one of disability discrimination and that primarily has to do with his terminations as well after let me ask you  it we're talking about events that happened years ago just curious as to where this case how long it was in the district court oh it wasn't just it was it was it was in the district court probably maybe a year and a half of the most c first to allow it to go through the mystery processes and unfortunately the oh f o takes forever to return opinions back on these kinds of cases if they're not procedural cases that deal one reason why took so long to get to district court it wasn't just recording it may be more than a year and a half so i think we follow it maybe in two thousand and fourteen but i would have to go back and look at specifically because it went to three judges the first judge was the godfather of opposing counsels of child so he recused himself the second judge george judge echoing austin for whatever in the last few seconds i had before my time and would you say this before i leave from our perspective the bottom line is that mr ken the shaw in particular did not want to and i jury and suffering from depression and panic disorder working for him did everything in his power to create a hostile work environment and to terminate mr cooke where it showed in his enemies toward mr quick with disability as well as his national origin and even though mr quick where was transferred to another group the damage had been done legal and factual made in the presentation we just heard first of all in the in the record before the court there is no evidence that mr carden had a smattering of s there's just no record of that  mr cowden that there there's been an issue made that mr khan needed maximum supervision on one particular training component and i believe that training component was corporate  taxation and so i was the revenue agents go through their first couple years they're getting trained in several different areas of taxation one of them corporate one of them business taxation and prior to the issue with mr cowden that that the appellant has has brought forward is that mr cowen received basically a raise a promotion or raise however you want to look at it he was doing the same job of making more money but in government maximal supervision on the corporate tax area well the decision about both mr cow didn't raise or promotion and about mister i'm so sorry that all all but to th happened after that decision now the other thing i've been calling it is susan and perhaps not it's a little bit misleading there really wasn't a decision to give anyone a raise or promotion or hold anyone back from a raise or promotion that the raise or promotion happened based on the performance of the performance evaluation from june of twenty ten at that time mistreated where was rated as unacceptable and mr carden was rated as at least fully acceptable  so that's the reason for the promotion or raise it happened at least for mr where he was automatically ineligible for that there was no decision to give him one or not give them told people died and it's only from his testimony and his deposition and from some e mails that we see that he is claiming he told people in the summer of two thousand  just after he was hired that he had suffered depression and that he had a panic disorder it's not clear from that record that he was telling him i have this now and i need a reasonable accommodation for it what is clear is that he actually filed a finally or submitted a request for reasonable accommodation and in june of two thousand and ten in fact it was june twenty ninth of two thousand and ten and i don't think the timing of the hat is is coincidental june twenty ninth was the day after his manager told him you have a week to resign or you're going to be fired and so he the very next day scimitar this request for reasonable accommodation he dates the requests for reasonable commendation  never got it never got processed well funny thing about that request form it was revised to government form it was revised in april of two thousand and ten so it's hard to see how a jury any reasonable your honor i i i from a commonsense perspective i believe it would given that we're dealing with the government and these these decisions are regulatory in large part hope and believe that even a non probationary employee could be fired for dishonesty however i think that they would have you know a nonprofit sharing employee there would be some due process involved for mr require that there doesn't need to be but what happened government document is a criminal offense your honor it is a criminal offense i'm sorry i don't know enough about the criminal statute for that to know whether or not criminal liability attaches to predating a document that way but it certainly my understanding is every week as a government employee i fill out a form to tell the government i work forty hours just want to know for the court that three through the year and a half that mr reich where was working at the iris his managers made consistent and detailed written criticism of his work now the point of this written criticism was to help mr icac where but nonetheless it serves as excellent evidence in this case that mr icac were had significant performance problems and by the way those performance problems were consistent in the same consists in areas and given the same consistent low ratings by not just his first major mr ken sharp but by a second manager and there's there's almost two hundred pages of this record of poor performance in the record and the span from record page three seventy nine through five seventy seven so it's it there just isn't any contention that mr or  there's no there's no reasonable contention here that mr where was was performing well or satisfactory or even i don't minimum level mystery where's performance was failing throughout his entire he his manager tells him this job is not working out for you and we're going to let you resign you have a week to make your decision you can resign or you'll be terminated as june twenty eighth of two thousand and ten mr icac where it goes to the show and based on that in the in the record in the counseling report the e o counselor notes that the decision to terminate him was suspended because he had asked for reasonable accommodation but it hadn't been given to him there's no record of that prior submission of a reasonable accommodation request and so it looks like mr icac or went to the office just after being told he was going to resign with a request form dated december two thousand and nine which now is seven months six or seven months prior saying well they've they've told me they're going to fire me but no one ever worked on this reasonable accommodation so the ego officer or the e o counsellor contacted his chain of command and sight they haven't seen this reasonable accommodation request no explains he asked for reasonable accommodation and no one's responded and now he's been fired and they said whoa hold on we're going to suspend the terminations let's try and work with them that's what they did and here are the ways that it and this is what i think  es the department of treasury summary judgment on this case is that at this point the record becomes replete with evidence of nondiscrimination evidence that the i r s the department of treasury attempted to work with this employee so that he would have an opportunity to succeed so first of all the suspend the initial decision to terminate him same day june twenty eighth the second they give him six more months to prove himself now during that time the transfer him doing new manager now we can make sure that this isn't an issue between two people who just are never going to click and maybe it's personality the way they get along but also they are trying to train m time now they got his request reasonable accommodation on the twenty ninth they saw that he asked for a quieter space and also quite a space in the same floor less foot traffic also  head noise cancelling headset so that he could concentrate they they comply with that request there was no negotiation they just said those two things we can do and they did it for him so they get those things done at the end of september two thousand and nine so there's a little bit of a gap there but here's mr i think where was presenting a doctor's note from long before he even started  his work at the i r s in support of his requests for his most nominations and they said ten you please get in more current doctors know because that one says your prognosis is good and it's from several years ago so we want to make sure we're we're treating whatever your  current situations he gets a new doctor's note they give him the reasonable accommodation and he they he has a reasonable accommodation in september of two thousand and nine that he as he has a new manager in september two thousand and nine in november i'm sorry i've said two thousand and nine and it was two thousand and ten for both of those excuse me in november of two thousand and ten his new manager since i mean email is everything ok with your reasonable accommodation he writes back it's working great well that's his own subjective perception and maybe it was addressing whatever problems he was perceiving or feeling for his concentration but his work product had not improved over that time and he was given again poor performance evaluations during that period now i also want to address and i forgot to do  this i want to address that he never received fails ratings before any of his protected activity and that that isn't true he received a failed rating in november two thousand nine on one of his case on on part of one of his cases and in that fails rating his manager said i'm giving you a fails rating and i'm basically growing concerned about this area  bought by the way was his communication it was written communication i'm growing concern about this because we've talked about it before and it's a really important part of this job so his manager tells him in november two thousand and nine that there's this really important part of his job that he's failing in november two thousand and nine it is only four or five months after he started there in june and it's only a few months after he's just done with his training he's on the job training and so and by the way that that mr mystery where presented that evidence in his in support of his response to our motion for was rated as just great until he says he starts asking for a reasonable accommodation until you make claims that that is not is demonstrably false and it's it's demonstrably false with evidence presented so to go back to how the the i r s was trying to help mystery could work in january of two thousand and eleven his manager and his second line manager have a meeting with him to tell him you have not mastered the material that you need to have mastered for this first year that was foundational material and we're not going to advance you to the next class because you haven't mastered that we need you to spend more time mastering that he wasn't being proposed for terminations or anything you just we need to help you focus on this now and i mean it's equivalent to taking you know the first level calculus and then you take the second level calculus if you get thrown into the second level calculus and you haven't done well on the first level calculus it's not going to look good and so he at this meeting has a blowup he begins crying and he yells at them he yells so loudly that the occupant of the office next door is knocking on the walls and coming around to make sure everybody's ok so a week later another meeting is scheduled at this meeting the strike where is given a terminations letter terminations because of his poor performance throughout the entire time i want to move on then to mr ickes where's the discrimination claims he's he's taking a shotgun approach at these claims and he's made claims for failure to promote and discriminant discriminatory discharge under title seven for race and national origin discrimination but he wasn't qualified for his job and he wasn't qualified for his promotion there's no evidence in the record to show that he was qualified for those things and the department of  provide evidence that he wasn't to almost two hundred pages of evidence that he's made a claim for a hostile work environment hostile work environment claim is based on four things that happened most of them were before that forty five day period now we've heard some legal argument that you can extend back and that's true but you only get to extend back when the the when the same sorts of incidents that you're complaining about within the forty five day period when they're somehow actually related to the previous incidents and there's none of that that the same people are involved and the same behavior isn't involved additionally the district court reached the correct conclusion that the issues mystery was complaining of were more akin to the simple teasing offhand comments and isolated incidents that don't amount to discriminate or discriminatory changes in the terms and conditions of his employment history cookware also made to disability discrimination claims one for failure to accommodate and one for discriminatory discharge however again he's not a qualified person he wasn't able to do his job either with the reasonable combination and he certainly wasn't able to do it before he had the reasonable accommodation he says well i close seven cases after i got the reasonable accommodation and it's true that he close seven cases after that however his job isn't any more about closing cases than mine is my office is not going to be satisfied to know that h bunch of cases got resolved but there's you know i made a bunch of mistakes and they were resolved against us that sort of thing it matters how he's doing it also matters that he has a good written record of what he's done because some of this stuff is going to end up being litigated you can imagine some people don't feel good about the audit that they receive from the i r s finally he has complained about retaliation first protected activity under both title seven and the rehabilitation act for his non promotion of his discharge however he's got absolutely no causal connection there is a temporal proximity but in the face of the irises non discriminatory explanation he is failing at his job he what is your answer to the issue that was raised about a document being supposedly back dated by six months under a no no form that had been revised three months earlier we don't have an answer for that i know would mystery quit where he stated that he filled out and december two thousand and nine with the support of two letters from his positions and the other issue as far as it being a form from april two thousand and ten came up much later so i have no explanation for that or you can move on to mr good where he states that his that english is his second language and we understand that there may be some issues with his writing to that extent and his communication but he is able to make himself understood is able to write in english so although at times he was criticized for his communication skills and for his writing skills the did not mean that he was not able to do or perform a couple of things one is that going from just nine to just eleven is not just a raise it is a promotion and although it may be based on how well you do with your praises it's still a decision is made in the record it shows where various management officials were aware of his request for reason accommodations as early as july two thousand and nine when he was director of the website that's emails found at page eight seventy seven in the record and where stated that mr quick wears condition his depression and panic panic disorder and made him wholly unqualified for the job as a revenue agent and that's found in page eight forty that animus toward mr quick where and the fact that he had suffered from certain types of disabilities or impairment and i understand that the agency transferred mr quick where from mr shaw is true to his daughter's group and that his performance didn't seem to improve very much because of that transfer she took away some of his duties to allow him to do better with his is cases and as mr cooper stated he said he closed most of his cases many of his cases the last seven parties germination closed and although that's not all of his job that is apparently part of his job is to close cases they are given a case of those and they are told that they need to resolve these cases that is part of his job that's a major part of his job used to close cases in the conference call that was referred to earlier mr simmons told mr quick wear that he did not believe that he closed these cases and those kinds of comments to mr quick where cause this crying outburst which is the wreck result of his disability his depression his panic disorder and yes it was loud and yes it did concern other employees and his termination was partly based on this outburst they called unprofessional conduct he was not a danger to himself he was not danger to anybody else however part of the reason he was fired was because of this outburst which was a direct result of his disability would be offensive probably to anybody else but as far as other people not not being involved in the other types of harassment in the shah was the main perpetrator of the eros meant that mr he quick