0120150392
09-25-2017
Kylee C.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee C.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120150392
Agency No. IRS120484F
DECISION
On November 7, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 15, 2014, final decision 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether the FAD properly found that Complainant failed to establish that she was subjected to disparate treatment, and discriminatory harassment based on her race (African American), disability, age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) in March 2012, her manager sent her inappropriate and insensitive emails referencing her disability; (2) on or about March 28, 2012, her manager shared information regarding her disability with employees who did not have a need to know; 2 and (3) on May 30, 2012, her performance appraisal for the period of June 1, 2011, through May 31, 2012, was lowered and contained a negative narrative.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-0318-10 at the Agency's Office of Research, Analysis, and Statistics facility in Washington, DC. The following facts are set forth in the Agency's FAD: on March 13, 2012, Complainant's Supervisor (S1) acknowledged receipt of a doctor's note pertaining to the examination of Complainant's eyes which revealed cataracts in both eyes. The note requested that Complainant return in two months for further testing and evaluation. S1 subsequently asked Complainant to have the physician complete the reasonable accommodation request form, and he recommended that the doctor explain what type of work Complainant would be able to do with reasonable accommodation, or whether Complainant needed to be reassigned to entirely different work that did not require use of a computer monitor. Complainant responded by email the next day that she had another appointment scheduled for May 4, 2012, and should be able to provide the completed form after the appointment.
On March 14, 2012, S1 sent her an email with the subject "Reasonable Accommodation" reminding her that she states the previous week that she would set up a doctor's appointment and ask the doctor to fill out the paperwork required to provide her with a reasonable accommodation that would allow her to return to her CDW (Compliance Data Warehouse) metadata work. Complainant responded the same day that she saw the doctor, who was preparing a letter for her to provide. On March 15, Complainant forwarded the email exchange to her second level supervisor (S2), advising her that she felt harassed and was seeking support through the Employee Assistance Program.
On March 16, 2012, S1 emailed Complainant with an attached document asking if she "could click on the attachment ... and let [him] know if [she had] trouble reading the text and numbers on [it]." She responded that some she could see and some she could not, but she was hurt and embarrassed by the inquiry as she said it showed that her supervisor didn't believe her.
On March 28, 2012, S1 sent an email to the Chief of the Data Services Section, the Office Director, S2 and Complainant, describing Complainant as having difficulties reading text on her computer monitor due to "vision limitations" and asking whether a larger monitor was available. Complainant forwarded the email to S2 and the Office Director stating that S1 had no right to discuss her vision with employees in his office.
On Complainant's May 30, 2012 performance appraisal, Complainant acknowledged her rating of "Outstanding" but objected to what she describes as an incorrect narrative stating she did not accept a reasonable accommodation and directing her to send monthly reports on completed work.
On June 20, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issues Presented" above. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but on June 12, 2014, the AJ denied the hearing request on the grounds that Complainant failed to respond to any of the Agency's written discovery request and any of the AJ's previous orders. The AJ granted the Agency's Motions for Sanctions and issued an order sanctioning Complainant by dismissing her hearing request. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination with respect to issue (2), but did not find discrimination regarding issues (1) and (3).
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, requests that the FAD be affirmed in part and reversed in part, and that the Commission issue a decision finding in total favor of Complainant. Complainant contends that she has shown by a preponderance of evidence that the Agency's actions were motivated by discrimination based on her race, age and disability, and that the Agency failed to provide legitimate, non-discriminatory reasons that were not merely a pretext for unlawful discrimination. In response to Complainant's appeal, the Agency requests that the Commission deny the appeal as untimely filed and affirm the FAD as issued.3 Alternatively, even if the appeal is accepted by the Commission, the Agency contends that the FAD's findings of law and fact are correct and should be affirmed.
STANDARD OF REVIEW
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. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and reprisal for prior EEO activity; we find that the Agency articulated a legitimate, non-discriminatory reasons for the alleged discriminatory actions, and the record is void of any evidence that any of the Agency's actions were motivated by discriminatory animus. S1 contends that after Complainant was assigned metadata work, she informed him of her vision problems. S1 acknowledged that at that point he inquired via emails whether Complainant could read certain documents and questioned why she could produce a document but had difficulty reading a similar document produced by someone else. He indicated he did this because as a manager he had to exercise due diligence to ensure that Complainant could in fact complete the tasks he was assigning her. With respect to the narrative which accompanied Complainant's performance rating, it appears that S1 included the information to explain why he might possibly reduce Complainant's rating in the future. The record is void of any specific evidence presented by Complainant to establish that these asserted reasons were pretext for unlawful discrimination, and that these actions were instead motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Harassment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that 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 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Furthermore, with respect to Complainant's claim of a hostile work environment, we find that even if accurately described by Complainant, these matters were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). For the most part, we find that the interactions between Complainant and her supervisor were work-related and we find no evidence that they were based on her race.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate he was subject to discrimination as alleged. The Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
___9/25/17_______________
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 The Agency found that there was a violation of the Rehabilitation Act with respect to issue (2). Because no aspect of the Agency's finding regarding issue (2) is being contested on appeal by Complainant, i.e., the remedy, the Commission's decision, herein, will not address this issue 2 further.
3 The Commission notes that the Agency's FAD is dated August 15, 2014, and that the Certificate of Service indicates that it was sent to Complainant's address on August 19, 2014; however, the Agency did not provide proof of the date it was delivered to Complainant's address of record (i.e. copy of a return receipt). Complainant maintained that she did not receive the FAD until October 10, 2014. Without more, the Commission declines to dismiss the appeal as untimely and will issue a decision on the merits of the appeal.
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