Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-3284-0500 (E.E.O.C. Jul. 22, 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
(Internal Revenue Service),
Agency.

Appeal No. 0120123284

Agency No. IRS-12-0030-F

DECISION
Complainant filed an appeal from the Agency’s July 19, 2012 Final Decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
Final Decision, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the
Agency’s Taxpayer Advocate Service facility in Atlanta, Georgia. On November 21, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
basis of disability when she was subjected to harassment that included the following incidents:

1. On September 30, 2011, Complainant’s manager (M1) asked to meet with
Complainant and upon Complainant telling the manager she wanted a union
representative present the manager proceeded to telephone Complainant fifteen
times over a five-minute time span.

2. On September 30, 2011, M1 charged Complainant with being absent without
leave (AWOL).

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). When Complainant did not request a
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hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant was an individual with a known disability
and for purposes of its Decision, the Agency assumed that Complainant was able to perform
the essential functions of her position. The Agency found, however, that management, and
specifically, M1, articulated legitimate, nondiscriminatory reasons for the actions Complainant
alleged were motivated by discrimination.

The Agency considered claim (2) (charged with AWOL) both as part of Complainant’s overall
claim of harassment and also as a discrete claim under a theory of disparate treatment. The
Agency found that Complainant was charged by M1 with being absent without approved
official leave because M1 did not know where Complainant was for an hour. M1 had
requested that Complainant meet with her regarding unspecified work issues, the Agency
found. Complainant, the Agency noted, responded to M1 that she believed she needed a third
party present to speak with Complainant because discussions between them had previously
ended in an argument. M1 was unable to locate Complainant at her desk from the time
Complainant refused to meet with her until Complainant returned to her duty post
approximately one hour later.

The Agency considered Complainant’s explanation that she had visited the union office in the
search for a third party. The Agency found no evidence of an electronic mail message that
Complainant believed was sent from the union office to M1, indicating where Complainant was
during the hour she was not at her desk. The Agency found that Complainant did not show
that M1 was motivated by Complainant’s disability to charge her for being absent from her
duty station without official leave.

With respect to Complainant’s overall claim of harassment, the Agency assumed as true
Complainant’s allegation that M1 called Complainant on the telephone repeatedly to speak with
Complainant during a five-minute span of time. Even if the calls occurred as alleged, the
Agency found that the isolated incident of excessive calls was not sufficiently severe or
pervasive to rise to the level of harassment either standing alone or together with
Complainant’s claim regarding M1’s AWOL charge. More importantly, the Agency found
that Complainant did not present evidence that her disability, rather than her refusal to meet
with M1, motivated M1’s actions.

The Final Decision concluded that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

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
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C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 9, 1999) (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”).
Harassment of an employee that would not occur but for the employee’s race, color, sex,
national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII 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. Harris v. Forklift Systems

, 510 U.S. 17
(1993).
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). He must generally 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). 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, 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).
In the instant case, we find the evidence supports the Agency’s Final Decision. We assume,
without so finding, that Complainant is a qualified individual with a disability. We find that
Complainant did not present evidence that more likely than not the Agency’s actions were
motivated by discrimination.

Specifically, we find no dispute that M1 desired to speak with Complainant and that
Complainant did not wish to speak with M1 without a third party present. We further find no
dispute that Complainant initially returned to her desk after informing M1 that she would not
meet with her without a third party present. M1 does not deny that she called Complainant
multiple times thereafter in her attempts to speak with Complainant at least by telephone.
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We consider Complainant’s statement that being unable to locate a telephone number for the
local union office, Complainant chose to visit the union office where she hoped to find a third
party to attend her meeting with M1. We find no evidence and Complainant does not contend
that she had M1’s approval to leave her work area for the purpose of visiting the union office.
Accordingly, we find the evidence supports M1’s explanation that when she was unable to
locate Complainant for an extended period of time, M1 charged Complainant with AWOL
because M1 did not know where Complainant was and not because of Complainant’s disability.

We do not find that Complainant submitted evidence that M1 made a habit of calling
Complainant at her desk multiple times, nor that Complainant’s disability motivated M1’s
actions to attempt to reach Complainant by telephone when the two had, in the minutes
preceding M1’s calls, established that M1 wished to speak with Complainant and that
Complainant refused M1’s directions. We find that M1 sought to manage her subordinate
employee, and to that end, placed the calls she did.

We find that Complainant did not show that she was subjected to discriminatory harassment
and we do not find that Complainant’s claimed disability motivated M1 to charge Complainant
with AWOL.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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
0120123284

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 22, 2015