0120141585
08-05-2016
Merilyn W.,1 Complainant, v. Jacob J. Lew, 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
Merilyn W.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120141585
Agency No. IRS130082F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 7, 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. For the reasons stated below, we AFFIRM the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to race discrimination and/or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's FAD properly found that Complainant was not subjected to discrimination and/or a hostile work environment.
BACKGROUND
Complainant worked as a Program Analyst, GS-13 at the Agency's facility in Denver, Colorado. Complainant maintained that on August 28, 2012, during a group meeting her supervisor (S1, Hispanic) became visibly upset and called her and another employee, C1, "out" for not paying attention while S1 was speaking. S1 asked Complainant and C1 to report to the group what they were discussing. Complainant maintained that C2, another employee who is Hispanic, was also talking but she was not subjected to ridicule or asked to explain. On another occasion, S1 was conducting an ice breaker exercise and when Complainant was not participating, she asked Complainant about her birth order and then indicated that anyone who was not a first born was destined to become a used car salesman. Complainant maintained that no Hispanic was singled out that way. Complainant also noted that S1 was "openly demeaning" to the Management and Program Assistant and "disrespectful," "rude and insulting" to two other employees. The Management and Program Assistant found S1 to be "openly hostile and combative" toward the Economist, and "humiliat(ed], demean[ed] and damag[ed]" the Economist's credibility with her coworkers.
On October 23, 2012, S1 approached the Complainant's desk to meet with Complainant. Complainant declined to speak with S1 until a union representative could be present. S1 continued to try to meet with Complainant, going to either side of the Complainant's desk in an effort to engage Complainant. Complainant maintained that she felt threatened by S1's behavior. The Economist recalled that after she took religious leave, S1 assigned her "extra and unnecessary work for the week in order to deny her the opportunity to work from home," S1 also refused to grant the Economist emergency leave, telling her that "she didn't like the way the Economist asked for leave." The Economist indicated that the only employee that S1 was pleasant to was another Hispanic employee.
Complainant also maintained that in October 2012, S1 wrote Complainant an email criticizing her for failing to provide information when requested, and advising Complainant that she was failing the critical job elements, of Employee Contribution and Workplace Interaction and Verbal Communications/Listening. S1 also told Complainant that she acted as if she did not want to be held accountable for project deadlines and deliverables.
On October 22, 2012, Complainant maintained that her manager did not acknowledge or provide feedback regarding her job performance and organizational skills. Complainant indicated that although she received an annual performance rating of "Outstanding," the narrative which accompanied her March 2012 - February 2013, annual rating was discriminatory. S1, Complainant indicated, noted that she was not always cooperative with management. S1 also maintained that Complainant did not respond to an inquiry from an IT personnel and that management provided Complainant with assistance so that the project could be completed in a timely manner. Complainant maintained that this criticism was unfair because management's role was to provide assistance; therefore, she felt that including this criticism in the rating was inappropriate unless it was meted out to all employees.
Further, Complainant indicated that S1 paired her with a Senior Research Analyst to help her conduct research using statistical software even though she believed that Complainant was biased against Research Analyst. Complainant did not agree with S1's assertion that she needed to do something to improve. She felt this criticism was based on S1's hostility toward her. Additionally, S1 criticized Complainant for not delivering the results of the DEN0206 project in a timely manner. Complainant asserted that she was "set up to fail" with this assignment, because she asked for assistance but it was not provided and she was sent on "a wild goose chase looking for something that did not exist;" additionally, she claimed that was assigned to work on parts of the project that had already been completed.
On December 12, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of race (Caucasian) when:
1. on several occasions, including August 28, 2012, September 25, 2012, and October 23, 2012, her manager displayed unprofessional behavior towards her, such as berating her in front of her peers during group meetings, such as getting in her face and screaming at her;
2. on October 5, 2012 and October 9, 2012, she was issued failing ratings and negative narratives regarding her communication skills; and
3. on October 22, 2012, her manager did not acknowledge or provide feedback regarding her job performance and organizational skills.
Following an investigation by the Agency, Complainant requested a FAD. The Agency found that Complainant did not establish that she was subjected to discrimination or a hostile work environment. Specifically, management explained that with respect to claim no. 1, S1 denied that she acted in a hostile manner. The Agency found, however, that this was not to be believed as multiply witnesses indicated that S1 was visibly and verbally angry towards Complainant for not paying attention; and raised her voice and berated Complainant. Notwithstanding, the Agency found that although the evidence showed animus between S1 and Complainant, Complainant offered no persuasive evidence that S1's animus was directed at Complainant because of her race. The Agency maintained that evidence showed that S1 was also abrasive to other employees including African American and other white employees. The only employee that S1 seemed to get along with was a Hispanic employee. Nevertheless, the Agency found that the observations were insufficient to show that S1 was motivated by discriminatory animus based on race when she criticized Complainant.
With regard to claims no. 2 and 3, the Agency found that S1 articulated legitimate, nondiscriminatory reasons for her actions. Specifically, with respect to claim no. 2, the supervisor explained that she did not give Complainant a negative rating but did point out in the narrative the problems that Complainant was having with completing assignments in a timely manner. S1 indicated that Complainant did not interact with S1 courteously and professionally and was closed minded about the direction of a project. S1 also noted that Complainant was upset that she provided assistance to Complainant in order for her to complete a project on time. S1 maintained that even though she requested information to support a customer's compliment of Complainant's efforts, Complainant did not provide evidence of her diligence. Finally, S1 maintained that Complainant's communication skills were somewhat negative.
Regarding claim no. 3, S1 maintained that Complainant did not negotiate a revised due date on a project. Complainant indicated that she had no time to follow-up on an inquiry even though S1 had requested it. Complainant also did not independently complete a project. S1 asserted that Complainant did not want to be held accountable for project deadlines, and S1 indicated that Complainant should be able to work on more than one project at a time. Moreover, S1 stated that Complainant's work was untimely even with the prior supervisor.
The Agency found that Complainant did not demonstrate that the Agency's nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the Agency erred in finding that S1 did not subject her to a hostile work environment given the fact that the Agency agreed that S1 was not to be believed regarding her outbursts during the meeting. Complainant maintains that in 2010, the Research Director told her that there had previously been an allegation of discrimination made against the previous manager and S1, both supervisors were Hispanic. The Research Director did not indicate if a fact finding investigation was conducted regarding the allegations of discrimination and there was no evidence of corrective action taken by management regarding the situation but he advised Complainant that a formal complaint with EEO should be pursued if it was warranted. Thereafter, in June 2012, the Research Director visited the Denver site and met with Complainant and asked for cooperation in working with S1 and indicated that he wanted to know if any subsequent incidents had occurred.
Complainant contends that the only support that S1 had in the office was from C2. According to Complainant, C2 provided a statement indicating that with regard to Complainant "management must constantly provide detailed direction and frequent, hands on attention." Complainant contends that C2's statement caused her to believe that S1 must have talked to C2 about Complainant's work performance. Finally, Complainant contends that the fact that S1 stated several times in her affidavit that she was a "Hispanic woman" further reveals that there were differences between her and Complainant.
In response, the Agency, among other things, requests that the Commission uphold the FAD. The Agency argues that the FAD should be affirmed because Complainant cannot show that the Agency's actions were based on discriminatory animus towards her race; or that the incidents complained of by Complainant were severe or pervasiveness enough to establish a hostile work environment.
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
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Moreover, harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with their work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD. Even if we find that a prima facie case exists, we find no persuasive evidence in the record which shows that S1's conduct towards Complainant was based on her race. In fact, the record shows that S1 appeared to be abrasive with almost all of her employees regardless of their race or sex. Although Complainant established that S1 had a friendlier relationship with a Hispanic employee, C2, we do not find that this evidence establishes that S1's more contentious relationship with Complainant was due to discrimination or harassment. We note in this regard the lack of evidence that C2 behaved in the same manner towards S1 as Complainant. For example, the Agency provided legitimate non-discriminatory reasons for claims 2 and 3, Complainant turned in projects late, refused to gather information that S1 requested, refused to communicate with S1 at times or refused to participate in group meetings. We also find that Complainant has not provided any evidence other than her speculation which suggests that C2 was given access to her private information. Finally, we find that the incidents complained of by Complainant were primarily work-related incidents that reflect regular interactions between an employee and their supervisor. As such, we find that the incidents complained of were not serve or pervasive enough to establish a hostile work environment. Accordingly, the preponderance of the evidence of record does not establish that discrimination or harassment occurred.
The Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination or a hostile work environment is AFFIRMED.
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
_8/5/16_________________
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.
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