Agency.Download PDFEqual Employment Opportunity CommissionDec 17, 20190220180007 (E.E.O.C. Dec. 17, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashaunda G.,1 Grievant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0220180007 FLRA No. 0-AR-5209 DECISION On August 7, 2018, Grievant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), from a decision of the Federal Labor Relations Authority (FLRA) dated July 3, 2018, concerning a grievance alleging unlawful 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405(a). BACKGROUND In April 2012, following an overturned suspension and removal by an Arbitrator (hereinafter “Arbitrator-1”), Grievant was returned to her position as a Field Revenue Officer at the Agency’s facility in Austin, Texas. Arbitrator-1’s February 2012 “Ruling on the Union’s Motion for a Directed Verdict” also directed the Agency to provide Grievant with sufficient “refresher and other training” and refrain from holding any evaluations of her performance against her prior to the completion of such training. Thereafter, on August 26, 2012, Arbitrator-1 issued a “Decision on the Union’s Discrimination Issues”. While Grievant’s suspension and removal were found not to be discriminatory or retaliatory, Arbitrator-1 did conclude that the Agency subjected Grievant to a hostile work 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. 0220180007 2 environment after she filed her 2007 EEO complaint until 2012. The Agency was ordered to return Grievant to a supervisory chain which did not include the discriminatory officials. She was to be offered a voluntary reassignment. If, however, she declined the voluntary reassignment, the Agency was to “immediately remove” the discriminating officials from her chain of command. Further, Grievant was awarded $150,000 in non-pecuniary damages for the physical and emotional harm she suffered. Regarding pecuniary damages, the parties were ordered to engage in settlement discussions to determine the appropriate amount.2 In February 2013, the Agency issued Grievant a “not-ratable” performance appraisal for the 2012-13 performance year. The Union contested the appraisal by filing a grievance in April 2013.3 The grievance proceeded to arbitration and hearings were held in June and September 2015. The Arbitrator (hereafter “Arbitrator-2”) framed the issues as follows: (1) Whether the Agency violated law, rule, and regulation and/or [the previous arbitration awards] when it failed to timely and fully return Grievant to meaningful work, give her necessary equipment, training, and authorizations . . . refused to reassign her, and then issued her a not-ratable annual appraisal . . . [for 2012-13]? (2) Whether the Agency continued a hostile work environment and reprisal against Grievant and otherwise continued to discriminate against her in violation of applicable laws by failing to timely and fully return Grievant to meaningful work, give her necessary equipment, training, and authorizations . . . refusing to reassign her, and then issuing her a not-ratable annual appraisal . . . [for 2012-2013]? In his “Opinion and Award”, dated May 26, 2016, Arbitrator-2 determined that the not-ratable appraisal violated the CBA and Arbitrator-1’s award. As for discrimination, Arbitrator-2 found that the “not-ratable” appraisal “continu[ed] . . . a hostile work environment” and constituted reprisal.4 Further, he concluded that the Agency continued to retaliate and create a hostile work environment in violation of Title VII. Grievant was awarded $150,000 in compensatory damages, a 30% enhancement for tax consequences, restoration of leave, and an “outstanding” rating and performance award for 2012-13. 2 After two years, the parties executed a settlement agreement in July 2014. The agreement, specifically excluded “annual appraisal grievances covering all years between and including 2010 and 2014.” 3 The grievance also alleged that the Agency failed to return Grievant to meaningful work, give her training, or reassign her away from the hostile work group. 4 The “not-ratable” appraisal was also found to have violated the February 2012 Arbitrator’s awards, as well as the collective-bargaining agreement. 0220180007 3 On June 27, 2016, the Agency filed exceptions to the award. In its July 3, 2018 decision, the Federal Labor Relations Authority (FLRA) concluded that: (1) the Arbitrator exceeded his authority when he considered compliance with earlier awards, rather than the sole issue of Grievant’s appraisal; (2) the direction to revalidate Grievant’s 2008-09 “outstanding” appraisal for 2012-13 failed to draw its essence from the CBA; and (3) the Arbitrator’s findings of reprisal and a hostile work environment were inconsistent with Title VII. The Arbitrator’s award was set aside. Grievant filed the instant appeal of the FLRA decision to the Commission. ANALYSIS AND FINDINGS Jurisdiction EEOC regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the agency, the arbitrator, or the FLRA on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. The Commission will only review that portion of the decision which pertains to the grievant's employment discrimination claim. The Commission does not have jurisdiction over any alleged violations of the collective bargaining agreement. See 29 C.F.R. § 1614.301(a). On appeal, regarding jurisdiction, Grievant simply states that because the underlying grievance alleged discrimination the FLRA decision is properly before the Commission. Meanwhile, the Agency asserts that “[t]he bulk of [Grievant’s] appeal consists of an effort to have the EEOC reinstate [an] Arbitrator[‘s] findings . . . particularly his finding that the Agency had failed to comply with the prior awards. . . .” The Agency argues that the FLRA’s determination, regarding whether an Arbitrator exceeded his authority are not reviewable by the Commission. The Agency contends that the Commission lacks the jurisdiction to reverse the FLRA decision on non-discrimination issues and therefore the instant appeal should be so limited. The Commission agrees. Consequently, the instant appeal shall only review the FLRA’s decision on the following matters: whether Grievant’s not-ratable appraisal was discriminatory and whether she was subjected to a hostile work environment. Appraisal The FLRA concluded that Arbitrator-2’s determinations “do not show that the Agency’s actions were sufficiently materially adverse to prove retaliation, or sufficiently severe or pervasive to establish a hostile work environment.” Noting that much of Arbitrator-2’s basis for finding a hostile work environment and reprisal were “already set aside” as a result of the FLRA’s conclusions regarding the other, non-discriminatory, issues before it (which the Commission declines to consider) it focused upon four particular instances. 0220180007 4 According to the FLRA, “the only remaining determinations supporting the conclusion” that Grievant was subjected to a hostile work environment included: (1) a manager, without evaluating Grievant’s work, told subordinates that he did not want her to receive an “outstanding” rating; (2) the Agency officials who testified that Grievant did not perform enough observable work to be rated, were unaware of the work she performed; (3) Grievant did not received a mid-year performance review or a written explanation for the not-ratable annual appraisal; and finally (4), that the Agency’s grievance denials did not address the discrimination allegations. Grievant contends she was subjected to retaliation when she was issued a not-ratable performance appraisal for the 2012-2013 performance year. To prevail in a disparate treatment claim such as this, Grievant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Grievant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency asserts that management officials were unable to evaluate Grievant’s performance due to a lack of observable work. According to the Agency, Grievant did not perform the required 60 days of observable work under the various critical job elements (CJE). The Agency asserts that this action was due to various reasons including the following: ongoing training that could not be evaluated, Grievant’s absences, and the lack of work completed by Grievant as she awaited reassignment to another position. Moreover, because Grievant also received a not- ratable appraisal for 2010, 2011, and 2012, there was not a rating of record to revalidate, in accordance with Agency policies. On appeal, Grievant attempts to establish that the Agency’s proffered reasons are pretext to mask discriminatory animus. Without supportive evidence, Grievant simply counters that she did perform 60 days of observable work. As for the CJEs, Grievant argues that management did see work under CJE-1 for over 300 days and “some elements of CJE-2”. Regarding the Agency’s statement that Grievant’s supervisor (hereinafter “Supervisor-1”) failed to document a rating for Grievant, she argues that this failure is not a legitimate reason. However, we do not find it to be evidence of discriminatory reprisal either. While Grievant argues that, in September 2012, Supervisor-1 accepted a “newly created position” and consequently was “gone” and unaware Grievant was going in the field and closing cases, she has not shown that her supervisor was motivated by Grievant’s prior EEO activity. 0220180007 5 Instead, the record shows that Supervisor was unaware of Grievant’s prior EEO activity. Supervisor had only heard that Grievant had previously been removed, but did not know the reason for the removal. Supervisor attested that it was because she had a good relationship with Grievant, that she was asked to continue to supervise her even after beginning her hew position. In another effort to show pretext, Grievant argued that Employee-B was treated more favorably, by receiving a rating, even though her “pocket commission”5 was also delayed. The Agency notes, however, that Employee-B had a different supervisor and did not have a pocket commission because she had transferred from another location. In contrast, Grievant lacked a pocket commission because she had been away from her job for a period of time. Further, there was no evidence that Employee-B required additional training or was restricted in being evaluated. Therefore, we agree that Employee-B is not “similarly situated”. Grievant has not met her burden in showing that the Agency’s proffered reasons were pretextual. Rather, we do not find that she had established a nexus between her prior protected EEO activity and the not-ratable appraisal. As noted by the Agency on appeal, Grievant contends the Area Director discriminated against her, but it was Supervisor-1 who issued the appraisal. The Area Director simply concurred with the decision, after it was also approved by Grievant’s second-line supervisor. The management official who worked closely with Grievant, and was responsible for the appraisal, has not been shown to be aware of, let alone motivated by, Grievant’s previous EEO activity. Hostile Work Environment To establish a claim of harassment a Grievant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 632 F.2d 397 (11th Cir. 1932). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of Grievant's employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 3, 1994). On appeal, Grievant describes various incidents of harassment, beginning at the time of her return to work. She contends that the Agency refused to tell her where and to which manager she was to report to, and that when she finally received a letter with the information, it was hours after the day and time ordered. Grievant states that the Area Director ignored her when he entered a room, and that her pocket commission was delayed, as well as her Agency cell phone. 5 This is required before a Revenue Officer can go into the field to work with taxpayers. 0220180007 6 Grievant asserts that failing to reassign her, until the 2014 settlement agreement, also created a hostile environment. Finally, Grievant contends management failed to intervene when co- workers shunned her and she received a letter accusing her of murder. Supervisor-1 testified that she timely requested the pocket commission and cell phone, and describes another employee also experiencing a similar delay. As for the letter, Supervisor-1 stated that Grievant brought it to her attention and Supervisor-1 reported it to her chain-of- command. But, she says that Grievant later stated she did not wish to pursue the matter. The record reflects legitimate, non-discriminatory reasons for many of these allegedly harassing actions. As for being ignored, or an isolated letter regarding a car accident, we do not find these events are sufficiently severe or pervasive to create a hostile or abusive working environment. Further, there is no evidence illustrating a connection between the incidents and Grievant’s prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the FLRA’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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. Grievant’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. 0220180007 7 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). GRIEVANT’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 Grievant’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 December 17, 2019 Date Copy with citationCopy as parenthetical citation