Alameda B.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181968 (E.E.O.C. Sep. 24, 2019)

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

Alameda B.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120181968

Hearing No. 490-2013-00137X

Agency No. IRS-12-0438-F

DECISION

On May 22, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 30, 2018, 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 following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination and a hostile work environment based on her protected
classes and in reprisal for her protected EEO activity.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Tax
Examining Technician at the Agency’s Centralized Case Processing Operation in Memphis,
Tennessee.

On June 18, 2012, Complainant filed an EEO complaint2 alleging that the Agency discriminated
against her on the bases of race (African American) and in reprisal for prior protected EEO activity
when:

1. on or around March 19, 2012, she received a memorandum for not following local
procedures;

2. on or around March 26, 2012, she received a memorandum for unprofessional
conduct;

3. on or around March 31, 2012, she received an unfair mid-year evaluation;

4. on an unidentified date in June 2012, she was required to provide a doctor’s
statement to support her absence;

5. on or around June 18, 2012, she was denied the opportunity to participate in the
Leadership Succession Review (LSR) Program;

6. management physically intimidated Complainant in August 2012 and February
2013;

7. in a meeting on January 28, 2013, management unfairly attacked Complainant
regarding Status 51 work assignments;

8. on February 4, 2013, Complainant received a work directive from a peer; and,

9. on February 6, 2013, management reassigned work to Complainant’s team that was
previously assigned to a different team with higher graded employees.

The investigative record reflects the following pertinent matters relating to the subject claims.

At the time of events, Complainant was a Supervisory Tax Examining Technician, team leader,
and frontline manager for one of six teams at the Agency’s Centralized Case Processing (CCP)
Operation. Complainant’s team consisted of six tax examiners, one clerk, and one lead tax
examiner.

2 This was later amended on February 15, 2013, and the amended claims were accepted by the
Agency on March 6, 2013.
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The record demonstrates that upper management often assigned and reassigned work as needed
due to work volume, deadlines, staff availability, and other workplace factors. The departure of
employees who were not readily replaced also increased workloads for remaining staff. In 2008,
management assigned clerical work to a member of Complainant’s team on a recurring basis.
Complainant expressed her concerns with the clerical managers that her team should not be
responsible for the excess clerical work.

In January and February 2012, shortly after the Acting Program Manager (African American) was
detailed to manage the six teams, Complainant raised concerns about the clerical assignments. In
February 2012, Complainant met with the Acting Program Manager, the Program Manager
(African American), and the Campus Compliance Operations Director (Director) (African
American) regarding her concerns. Complainant informed upper management that the assignment
of clerical tasks to her team amounted to waste, fraud, and abuse. When management refused to
reassign the tasks, she informed them that she intended to file an EEO complaint. Complainant
claimed the assignment of the clerical tasks to her team was discriminatory because the tasks were
not assigned to a team which was lead by a White team leader. Upper management informed
Complainant that she was welcome to file a complaint, however such a complaint would have no
impact on her team’s workload. Complainant was informed that her team would be expected to
perform work as assigned, and that she would be expected to supervise all such work.

On March 16, and 19, 2012, Complainant again met with the Acting Program Manager and the
Operations Manager regarding her concerns. On March 19, 2012, Complainant was given a
memorandum counseling her actions, and a reminder to follow protocol. On March 26, 2012, the
Operations Manager issued a second memorandum, counseling Complainant for unprofessional
conduct. Specifically, that Complainant engaged in a physical “tug-of-war” with the Operations
Manager over the March 19, 2012 memorandum. Complainant stated that this was an example of
physical intimidation by the Operations Manager. Complainant argued that both memorandums
were issued in retaliation for her protected activity. The Operations Manager denied issuing either
memorandum as a form of retaliation, and asserted that both were issued solely based on
Complainant’s behavior.

Shortly after, Complainant was issued her mid-year evaluation by the Acting Program Manager.
Complainant believed the evaluation was issued unfairly. The mid-year evaluation noted that
Complainant was not fully meeting her responsibilities and commitments in that she demonstrated
unprofessional conduct in the presence of her subordinates and peers. The evaluation stated that
Complainant’s concerns regarding work assignments were elevated and a decision was made, and
that thereafter, Complainant repeatedly by-passed her first level supervisor to continue to pursue
the Operations Manager or the Director. Complainant argued that her behavior should not have
been factored in her evaluation, and only her actual work performance should have been
considered. The Operations Manager disagreed and determined that behavior and performance
were intertwined.

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From May 21-31, 2012, Complainant was out of the office. Complainant asserted that she was on
sick leave. Upon her return, Complainant provided the Acting Program Manager with a doctor’s
note covering just three days. The Acting Program Manager stated that the note had to cover the
entire absence to be counted. Complainant felt that the request was unnecessary.

On or around June 18, 2012, Complainant argued that management purposely denied her assistance
in applying for the Leadership Succession Review Program. While Complainant expressed interest
in the program, the record does not contain any applications.

On August 16, 2012, Complainant asserted that the Operations Manager intentionally stepped in
front of her so that she would end up bumping into her. Complainant stated that this was just one
example of physical intimidation. The Operations Manager denied ever physically intimidating
Complainant.

On January 28, 2013, Complainant asserted that the Operations Manager unfairly attacked her by
asking about clerical assignments during a managerial meeting. The Operations Manager asserted
that it was appropriate to discuss various work load issues during managerial meetings.

On February 4, 2013, Complainant was copied on an email by a colleague informing a revenue
agent that Complainant was on leave, but would respond to the request upon her return.
Complainant did not articulate how race or reprisal factored into this incident.

On February 6, 2013, management reassigned work to Complainant’s team. The Program Manager
stated that work was reassigned to make sure work was completed by a set deadline. Complainant
believed the reassignment was retaliatory.

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 timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that she has clearly established a prima facie case of disparate
treatment and of retaliation. She asserts that she has offered sufficient evidence to establish that
she suffered adverse actions at the hands of her employer, that other similarly-situated employees
not in her protected class were treated more favorably than her, and that as result, she suffered
harm to terms and conditions of her employment. Complainant argues that the Agency failed to
proffer any legitimate, non-discriminatory reasons for the actions it has taken.

The Agency did not submit any statement or brief in opposition to Complainant’s appeal.

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ANALYSIS AND FINDINGS

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 (EEO MD-
110), 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”).

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish this claim, a complainant 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
0120181968

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creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant’s employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Reprisal

Complainant also alleges that the Agency retaliated against her. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on her protected classes, the Agency has
articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant argued
that she was discriminatorily given the March 19, and 26, 2012, memorandums. Complainant also
argued that when she pushed back against the perceived hostile act, she was given an unfair mid-
year evaluation on March 31, 2012. Based on the record, we find that it indicates that Complainant
was unhappy with the clerical work her team was assigned starting in 2008. Complainant perceived
the assignment to be beneath the station of team, but only began making complaints around 2012.
The record indicates that the clerical work assignments stemmed from 2008, and it was set in place
due to a variety of work place factors.
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There is no evidence that the initial, or continued, assignments were assigned as a form of
punishment or disparate treatment against Complainant or anyone on her team. Here, management
stated that Complainant received the memorandums based solely on her inappropriate actions,
specifically, that she consistently overstepped her chain of command in attempts to remove the
clerical work assignments, and then behaved inappropriately by snatching the March 19, 2012
memorandum from the Operations Manager while discussing the memorandum. Management has
detailed specific, legitimate, and nondiscriminatory reasons for its actions.

Complainant further argued that the unfair mid-year evaluation was clear retaliation as her work
was above standard. Complainant argued that management’s perceived notion regarding her
“behavior” should not have been considered. In this instance, we agree with management that it is
permissible to consider an employee’s behavior and work performance in writing an employee’s
evaluation. While Complainant has argued the unfair, and discriminatory nature of the
memorandums and the evaluation, we disagree. There is nothing here to demonstrate that the
actions taken were done to discriminate against or harass Complainant. While Complainant argued
that the reasons were pretext for discrimination and retaliation, we are unpersuaded by her
arguments.

Agencies generally have broad discretion to carry out personnel decisions and exercise business
judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding
these adverse actions, the Agency has articulated legitimate, nondiscriminatory reasons for its
actions for which Complainant has failed to show were pretext for discrimination. Pretext inquiry
is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether
the agency made the best, or even a sound, business decision; it is whether the real reason is
discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for
intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

Regarding Complainant’s various claims supporting her hostile work environment claim, namely
that she was required to provide a doctor’s note for leave; denied an opportunity for the Leadership
Succession Review Program; physically intimidated; verbally attacked during a managerial
meeting; received a work directive from a coworker; and, received a reassignment of purportedly
higher grade work, we find that none of the examples provided, alone or all together, provide
evidence of a pervasively hostile work environment. We note that the discrimination statutes are
not a civility code. What is prohibited is “behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. at 81. We are mindful that the
discrimination statutes do not create a right to work in a pleasant environment, merely one that is
free from discrimination. As a result, employees may experience unprofessional, inappropriate,
and disrespectful treatment. In the instant matter, the record demonstrates that Complainant had a
contentious relationship with her superiors, particularly with the Operations Manager.
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However, incidents such as accidental bumps, discussion of work matters, and reassignment of
work do not demonstrate that Complainant was subjected to a legally hostile work environment,
discrimination, or retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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).
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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
Carlton M. Hadden, Director
Office of Federal Operations

September 24, 2019
Date