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

Equal Employment Opportunity Commission

Mar 14, 2013

0120114217 (E.E.O.C. Mar. 14, 2013)

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. 0120114217

Hearing No. 410-2010-00130X

Agency No. IRS-09-0249-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 29, 2011 final order 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correspondence
Tax Examiner in the Wage and Investment Division at the Agency’s facility in Chamblee,
Georgia. On February 2, 2009 (and twice amended), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American) and in reprisal for prior protected EEO
activity when:

1. On or about December 24, 2008, her manager (M1) wrote a negative review against
her;

2. On or about December 19, 2008, she received a memorandum regarding
inappropriate behavior from the operations manager (M3);

3. On or about November 13, 2008, she received an email from M3 accusing her of
making derogatory comments and being loud and disruptive;
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4. On or about November 13, 2008, M1 requested that she provide a letter for
administrative leave that she requested;

5. M3 attacked her and made allegations without justification or clarification;

6. On or about May 18, 2009, she was transferred to a work unit where the workload
was increased and made more stressful in order to cause her to fail her job duties;

7. On or about May 27, 2009, she received a Letter of Proposed Removal from her
manager (AM); and

8. On or about June 3, 2009, she received an annual appraisal with a rating of 4.2
which was lower than the prior year rating of 4.6.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on May 11, 2011, and issued a bench decision on May 18, 2011.

In her decision, the AJ initially assumed arguendo that Complainant had established a prima
facie case of discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), M1 testified that she
issued Complainant a memorandum because she had previously stated to her employees that
the status dates on cases should not be changed, and Complainant had continued to change
those dates. M1 testified that changing the dates could have a negative impact on the Agency
and taxpayers; therefore, she issued Complainant a counseling memorandum to address the
issue.

Regarding claims (2) - (5), M1 testified that she was a relatively new supervisor and unfamiliar
with what was required to support a request for administrative leave so she inquired of M3 to
determine what information Complainant needed to provide. M3 informed her as to what
documentation was needed, and M1 then requested that Complainant provide that information.
Complainant then called her attorney and had a conversation loud enough to disrupt at least one
employee. As a result, Complainant was counseled by email that she should not have been
disruptive or engage in inappropriate workplace behavior. When that did not stop the issue
from escalating, Complainant was given a memorandum on December 19, 2008, about her
inappropriate workplace behavior.

In regard to claim (6), management testified that Complainant was transferred because she had
requested the transfer and the Agency had work for her in another department. While
Complainant claimed that this resulted in an increased workload and was more stressful,
witnesses testified that the work was no greater than elsewhere and did not increase job stress.

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With respect to claim (7), management testified that Complainant received the Letter of
Proposed Removal because she took home sensitive taxpayer information in violation of
Agency policy. The Agency based this decision on the Agency’s Penalty Guide,
Complainant’s prior discipline, and the fact that Complainant knowingly took the sensitive
information home.

Finally, as to claim (8), Complainant received a 4.2 on her performance appraisal because she
failed one of the elements. Complainant had committed more than one error in that element
and Agency policy stated that if an employee committed more than one error, the employee
failed that element. As a result of the failure of that element, Complainant received an average
score of 4.2 on her appraisal.

The AJ concluded that Complainant had presented no evidence that the Agency’s reasons were
pretextual. Further, the AJ found that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Accordingly, the AJ held that Complainant
had not been subjected to discrimination, reprisal, or a hostile work environment as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she presented ample evidence showing that the Agency
discriminated against her and that the AJ was biased against her. Complainant argues that the
Agency’s reasons for its actions are false and are pretext for discrimination. Complainant
denies that she was loud and disruptive while on the phone with her attorney in November
2008, and the AJ ignored the whole story. Further, Complainant contends that M1 made up
the error that she accused Complainant of committing and management conspired to accuse her
of retrieving unauthorized information so that she would be terminated. Accordingly,
Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).
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ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant’s contentions that the AJ
exhibited bias against her and failed to act impartially. The Commission notes that EEOC
regulations and Commission precedent provide AJs with broad discretion in the conduct of a
hearing and related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at 9-10.
The Commission has reviewed the hearing transcript as well as other documentary evidence in
the record and is unable to find evidence of bias, or other reversible error, resulting from the
manner in which the AJ managed and adjudicated this case.

Disparate Treatment

To prevail in a disparate treatment claim, 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
inference of discrimination. Furnco Construction Corp. 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. 23, 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., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).

Upon review, the Commission finds that the AJ's findings of fact are supported by substantial
evidence. Assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), M1 testified that she
issued the memorandum because Complainant continued to change the status dates on cases
despite numerous prior instructions to not change them. Hr’g Tr., at 23-24. Changing the
dates on these notices could adversely affect the Agency in court and taxpayers in computing
interest. Id. at 23. Complainant had been previously informed about this matter and continued
to make the same mistake, therefore M1 issued the memorandum.

Regarding claims (2) - (5), Complainant sent M1 an email stating that she was going to take
administrative leave for about six hours. M1 had never received a request for that many hours
at one time and conferred with M3. M1 informed Complainant that she needed to provide
documentation about the purpose of the request. Hr’g Tr., at 35. Complainant became upset
and demanded to meet with M3, who was unavailable for an immediate meeting. Id. at 37.
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Complainant called her attorney and had a loud and disruptive conversation about the matter
which made at least one co-worker uncomfortable. Id. at 38-39. Complainant disregarded
M1’s instructions to lower her voice, and M1 reported the issue to M3. M3 emailed
Complainant to inform her that such disruptions would not be tolerated and would be addressed
if they continued. Id. at 191. M3 believed that Complainant’s loud conversation was
inappropriate in the middle of the unit and should have been done in a conference room or
outside of the office. Id. Complainant continued to send emails about the matter, and M3
later sent a memorandum reiterating all of the matters previously discussed.

As to claim (6), the Acting Operations Manager (AM) decided to transfer Complainant to the
Questionable Refund Programs division after she requested a transfer out of her original
department. Hr’g Tr., at 278. Management believed the work there was less technical, but
the workload was not more than other teams. AM added that she believed that Complainant,
as a Journeyman Level 7, would be successful in the program. Id. at 282.

Regarding claim (7), AM testified that she issued the Proposed Letter of Removal based on
Complainant’s misconduct of taking taxpayer data home which was a direct violation of
Agency policy. Hr’g Tr. at 283. AM issued the Proposed Letter of Removal after consulting
with Labor Relations, applying the Agency’s Penalty Guide, and considering Complainant’s
prior discipline. Id. at 284. Finally, as to claim (8), Complainant had committed three
disclosure errors during the rating period; therefore, she received a “Fail” under the Security
and Disclosure Aspect. Hr’g Tr., at 54-56. Any employee who received that many errors
received a “Fail” in that aspect according to Agency policy. Id. at 56. As a result,
Complainant received a 4.2 rating on her performance appraisal.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256. The Commission finds that the substantial record evidence supports
that Complainant failed to establish pretext as to these claims. The record and facts gleaned at
the hearing fail to prove any evidence purporting to show the Agency's actions were pretext
for discriminatory or retaliatory animus. As a result, the Commission finds that Complainant
was not discriminated or retaliated against as alleged.

Finally, to the extent that Complainant contends that she was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of
hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is
precluded by the Commission's determination that Complainant failed to establish that any of
the actions taken by the Agency were motivated by discriminatory or retaliatory animus, as
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discussed above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000).
CONCLUSION

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 (Nov. 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
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).

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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 (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

March 14, 2013
Date