Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120122181 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120122181

Hearing No. 451-2011-00242X

Agency No. IRS-11-0110-F

DECISION

Complainant filed an appeal from the Agency’s March 22, 2012 Final Order concerning her
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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Modernization &
Information Technology Services Information Technology (MITS IT) Specialist at the
Agency’s facility in Austin, Texas. On January 6, 2011, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On September 8, 2010, Complainant was subjected to sexual and offensive
comments by a manager;

2. On September 21, 2010, Complainant was threatened with removal due to a
falsified report to TIGTA by a manager; and

3. On October 19, 2010, Complainant was notified that the job offer for MITS IT
Specialist, GS-07/09, under vacancy announcement number 40-42-10EPT096
was rescinded.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
November 22, 2011, and issued a decision on March 7, 2012.

In her Decision, the AJ found that regarding claim (1), that the credible evidence established
that an Agency official commented that Complainant looked like a “dyke” when she appeared
at work with a new haircut. That was the only offensive or discriminatory comment that was
made.

Regarding claim (2), the AJ found that the evidence did not show that Complainant’s proposed
removal was based upon a falsified report; rather, an internal report determined Complainant
had reported working more hours than she actually worked and that was the reason that
Complainant’s removal was proposed.

The AJ further found with regard to claim (3) that the only reason the identified job offer to
Complainant was rescinded was because the manager involved realized that Complainant had
an open/pending labor relations (LR) case against her. The AJ found no evidence of any other
reason the job offer was rescinded. The LR case had nothing to do with opposing
discrimination.

The AJ found the evidence did not show the required nexus between Complainant’s EEO
activity and the claims in the complaint. Accordingly, the AJ found that Complainant did not
establish a prima facie case of harassment based on reprisal for prior protected activity. The
AJ found that the single comment concerning her hair from the manager was insufficient to rise
to the level of harassment.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination on any basis as alleged.

ANALYSIS AND FINDINGS

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.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
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testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

In the instant case, we find substantial evidence supports the AJ’s Decision.

We concur with the AJ that the one isolated remark to Complainant described in claim (1) was
an isolated incident that was neither severe nor frequent and did not rise to the level of
harassment.

Regarding claim (2), Complainant states on appeal that she was ultimately found “not guilty”
of the time and attendance infractions with which she was charged in the proposal to remove
her from service. Complainant was ultimately not removed from service. We find, as did the
AJ, that S1 was prompted to act as he did based upon information he received from other
Agency personnel, and not by Complainant’s sex or in reprisal for Complainant’s prior
protected activity. There is no evidence showing that the information given to S1 was
discriminatorily generated or that S1 treated similarly situated employees differently.

Regarding claim (3), we find substantial evidence supports the AJ’s conclusion that the
identified job offer was rescinded for the reasons stated by the Agency. We observe that by
electronic mail message dated October 20, 2010, Complainant was informed by the senior
manager of MITS that he was withdrawing the offer extended to her because at the time he
offered her the position, he was not aware that Complainant had an open or pending case in
labor relations. We find, as did the AJ, that Complainant did not show that this reason was
untrue and that discrimination was the real reason the job offer was rescinded.

CONCLUSION

After a careful review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

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 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
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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
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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

March 7, 2013
Date