Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-3260-0500 (E.E.O.C. Sep. 25, 2015)

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,
Agency.

Appeal No. 0120133260

Hearing No. 451-2013-00136X

Agency No. IRS-12-0534-F

DECISION

On August 19, 2013, Complainant filed an appeal from the Agency’s July 26, 2013, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Individual
Taxpayer Advisory Specialist at the Agency’s work facility in El Paso, Texas.

On August 8, 2012, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the basis of reprisal for her prior protected EEO activity under
Title VII when:

1. In January 2012, she was removed from a temporary assignment.

2. On March 19, 2012, she was issued a Memorandum of Written Counseling.

3. On May 4, 2012, she was not provided a response as to why she was initially denied
8.45 hours of credit time worked in 2011.
0120133260

2

Complainant claimed that these incidents constituted retaliatory harassment. 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. On
June 11, 2013, the AJ issued an Order to Show Cause Why Complainant Should Not Be
Sanctioned for her failure to timely cooperate with the EEO Investigator during the processing
of her complaint. The AJ indicated that Complainant failed to provide the EEO Investigator
with necessary written statements. On June 17, 2013, Complainant responded that the Agency
had not completed its investigation of her complaint within 180 days. Complainant further
stated that she told the EEO Investigator that she had answered all of the Investigator’s
questions and that she wanted the complaint to move forward to the next level immediately.
The AJ stated that Complainant failed to timely respond to the Show Cause Order as her
response had not been received by the required deadline of 2:00 p.m. Central Standard Time
on June 17, 2013. On June 18, 2013, the AJ issued an Order denying the hearing request and
remanding the complaint to the Agency for the issuance of a final decision pursuant to 29
C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. With regard to claim (1), Complainant had been part of a rotation of
Taxpayer Advisory Specialists who worked assignments at the Agency’s Roswell, New Mexico
facility. Complainant was scheduled to be in Roswell once a month from October 2011 –
March 2012, and in May 2012. Complainant claimed that her Supervisor discriminated against
her when she was removed from this temporary assignment. Complainant noted that on
August 4, 2011, she had participated in the EEO process when she submitted a written
declaration to an EEO Investigator in a coworker’s EEO complaint.

According to the Supervisor, she did not remove Complainant from the Roswell schedule, but
rather in November 2011, the Albuquerque office stated that effective January 2012, the
Roswell office would open only twice per month, and beginning in May 2012, only open once
per month. The Supervisor explained that she subsequently halved the Roswell rotation and in
May 2012, the Albuquerque office decided it would assume responsibility for providing service
to the Roswell facility, commencing in June 2012. The Agency noted that Complainant
claimed that her Supervisor arbitrarily removed her from the Roswell detail. Complainant
stated that she questioned the Supervisor about her removal, but that the Supervisor did not
respond with a reason, and instead said it was her call.

With respect to claim (2), the Agency stated that on March 13, 2012, the Supervisor instructed
Complainant to assist a taxpayer. According to the Agency, Complainant did not comply with
the instruction and instead worked on her Forms 4442 Inventories. The Supervisor asserted
that Complainant exhibited the same behavior the following week. The Agency noted that the
Supervisor stated that when she observes taxpayers in the lobby, she will find an employee to
service the taxpayer. The Agency stated that the Supervisor did not need to counsel other
0120133260

3
employees in similar circumstances because other employees did not fail to service taxpayers
when requested to do so.

As for claim (3), the Supervisor stated that Complainant mentioned to her the credit time issue
in October or November 2011. The Supervisor asserted that she requested that Complainant
submit specifically which days and how much credit time she worked. The Supervisor
maintained that Complainant did not provide this information until May or June 2012.
According to the Supervisor, Complainant was compensated for eight hours and forty-five
minutes, with two hours being credit time and six hours and forty-five minutes being overtime.
Complainant contended that she provided the Supervisor with proof of her earned credit hours
and dates earlier in the process but the Supervisor did not address the issue.

In its analysis on the merits, the Agency rejected Complainant’s claims of discrimination with
regard to each claim. With regard to claim (1), the Agency observed that the temporary details
of all employees to the Roswell facility ended when the Roswell office was no longer open full-
time. The Agency noted that Complainant and other employees rotated to Roswell once a
month until all of the rotations were concluded. The Agency determined that Complainant
failed to establish a prima facie case of reprisal as the Agency reasoned that the four-month
period between the prior EEO activity in August 2011 and the adverse action in January 2012
was insufficient to establish a causal nexus. The Agency noted that Complainant worked her
scheduled rotation from October 2011 - January 2012. Assuming arguendo that Complainant
set forth a prima facie case, the Agency determined that it articulated a legitimate
nondiscriminatory reason in that all employees’ temporary assignments ended when the
Roswell office was no longer open full-time.

With respect to claim (2), the Agency determined that Complainant did not comply with her
Supervisor’s instruction to assist a taxpayer. The Agency stated that Complainant failed to
show that she was similarly situated with other employees. The Agency stated that the reason
Complainant received the written counseling was due to her failure to comply with the
Supervisor’s instruction. As for claim (3), the Agency determined that Complainant did not
produce evidence that she was not paid for the credit time she worked in 2011. The Agency
further stated that Complainant did not provide evidence of when she worked the credit time
until May or June 2012, despite being requested to do so by the Supervisor in October or
November 2011.

The Agency reasoned that because Complainant failed to establish discrimination with respect
to each of her claims, her harassment claim must likewise fail. The Agency noted that only
one witness other than Complainant was dissatisfied with the Supervisor’s supervision, and that
witness did not allege that the Supervisor had a discriminatory motivation.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ’s actions reflected a bias in favor of the Agency
and that she should be granted a hearing. Complainant maintains that she timely responded to
0120133260

4
the Order to Show Cause. With respect to her credit hours, Complainant argues that she
inquired about her time periodically and her Supervisor’s repeated response was that she would
look into it. According to Complainant, after she sought the assistance of her Union Steward
in December 2011, the Supervisor responded for the first time that she had received
incomplete information. Complainant claims that she resubmitted her information and again
was informed in March 2012, that the information was incomplete. Complainant maintains
that she resubmitted the same information and made an inquiry on May 1, 2012, but she still
had no credit hours.

Complainant contends as to claim (1) that she was scheduled to go on the last trip to the
Roswell facility in September 2012, but that she was replaced on the duty roster without cause
and without being afforded notification. Complainant states that the Union Steward informed
her that her Supervisor stated that it was her call. With respect to claim (2), Complainant
argues that the Supervisor fabricated the facts to justify committing reprisal against her.
Complainant denies that she refused to call taxpayers. Complainant maintains that it is office
procedure to work on the Form 4442’s at the end of each day. Complainant claims that she
heard the Supervisor say everyone had been called after she passed her cubicle. According to
Complainant, the incident was never discussed prior to the issuance of the Memorandum of
Written Counseling. Complainant contends that her Supervisor also fabricated the alleged
second incident. Complainant states that on the second day in question she had finished her
payments and logged off, and subsequently got back on the system and learned that all
taxpayers had been called.

In response, the Agency asserts that Complainant’s appeal offers no legal support to challenge
the AJ’s ruling or its determination on the merits.

ANALYSIS AND FINDINGS

Initially, we shall address Complainant’s contention that the AJ improperly denied her a
hearing. Pursuant to EEOC Regulation 29 C.F.R. §1614.109(f), an AJ has independent
authority and broad discretion in the conduct of hearings, including discovery, and ordering the
production of information or documents. An AJ has the authority to impose sanctions on a
party if he or she fails to comply without good cause with orders or requests. In the present
case, the AJ sanctioned the Complainant for failing to comply with her Order to Show Cause,
when she failed to within the designated time frame, respond to the AJ’s request to explain
Complainant’s failure to cooperate with the Investigator. Complainant has presented no
evidence to support her contention that she timely responded. Accordingly, we find the AJ
acted within her authority to dismiss Complainant’s request for a hearing and to remand the
matter to the Agency for a final decision.

To prevail in a disparate treatment claim such as this, Complainant 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
0120133260

5
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, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) she engaged in protected EEO 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 her protected activity and the adverse treatment. Whitmire v. Dep't
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where 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, Complainant 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).

We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard
to each of the claims at issue. The Agency stated with regard to claim (1) that Complainant
had been part of a rotation of Taxpayer Advisory Specialists who serviced the Roswell facility.
According to the Agency, the Albuquerque office decided that the Roswell facility would only
open twice per month effective January 2012, and only once per month commencing in May
2012. The Albuquerque office stated it would assume responsibility for servicing the Roswell
office beginning in June 2012. The Agency stated that Complainant serviced Roswell in
February, March and May 2012, and was not scheduled there afterwards. We find that the
Agency articulated a legitimate, nondiscriminatory reason for Complainant no longer
performing this assignment. Upon review of the record, we find that Complainant has not
presented persuasive evidence that the Agency’s explanation for not scheduling her further at
Roswell was pretext intended to hide retaliatory motivation.

With respect to claim (2), the Agency stated that Complainant was issued the Memorandum of
Written Counseling because she did not comply with her Supervisor’s instruction to provide
service to a taxpayer near the end of the workday. The Agency asserted that servicing the
taxpayers waiting in the lobby is a priority. The Supervisor stated that the following week
Complainant had logged off before the end of the workday even though there were taxpayers
waiting in the lobby. We find that the Agency articulated a legitimate, nondiscriminatory
reason for issuing Complainant the Memorandum of Written Counseling.

Complainant maintains that she thought the Supervisor had stated all of the taxpayers had been
called and therefore she did not need to service them near the end of the workday.
Complainant further states that she was working on her Form 4442 Inventories which was also
a priority. We observe that one of Complainant’s coworkers stated in her affidavit that
Complainant is usually the first one to leave exactly at 4:45 p.m. even though there are
0120133260

6
taxpayers waiting. We find that the evidence indicates that Complainant did not follow her
Supervisor’s instruction to service the taxpayers waiting for assistance. We find that
Complainant has not established that the Agency’s reason for the issuance of the Memorandum
of Written Counseling was pretext intended to mask retaliatory motivation.

As for claim (3), the Agency asserted that the delay in compensating Complainant for the
credit time she worked was due to Complainant not submitting the necessary information. The
Supervisor stated that she requested in October or November 2011, that Complainant provide
which days and how much credit time was worked. The Supervisor stated that Complainant
did not submit such specific information until May or June 2012. We find that the Agency
articulated a legitimate, nondiscriminatory explanation for its handling of this situation.

Complainant states that she previously submitted proof of earned credit hours and dates but the
Supervisor did not take action, and that she needed to get her Union Steward involved in the
matter. Complainant also claims that in the past she was not monetarily paid for credit hours
but was compensated with time off. Upon review of the record, we find that Complainant has
not refuted her Supervisor’s statement that she did not timely submit the information about the
days and how much credit time she worked. As to the form of compensation, the record
indicates that Complainant received two hours of credit time and six hours and forty-five
minutes of overtime. According to the Supervisor, Complainant had over 100 hours of use or
lose leave and that she was supposed to take use or lose leave before credit time. The
Supervisor stated that there was a concern that Complainant would not be able to take
sufficient credit hours in a reasonable amount of time to free up enough time to post the
remaining six hours and forty-five minutes as credit time. The Supervisor asserted that
therefore a managerial decision was made to compensate Complainant with overtime. We find
that Complainant has not established that the Agency’s explanation for its handling of this
matter was pretext intended to hide retaliatory motivation.

With regard to Complainant’s claim of a retaliatory hostile work environment, as expressed
above, we find that none of the alleged incidents were attributable to reprisal. Therefore, we
find that whether the incidents at issue are considered individually or cumulatively,
Complainant was not subjected to retaliatory harassment.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:
0120133260

7

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, 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 (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
0120133260

8
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

September 25, 2015
Date