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

Equal Employment Opportunity Commission

Jul 30, 2015

01-2013-1982-0500 (E.E.O.C. Jul. 30, 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. 0120131982

Hearing No. 560-2012-00077X

Agency No. IRS-11-0338-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
March 25, 2013 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Representative at the Agency’s Customer Service Center in Kansas City, Missouri. On March
9, 2011, Complainant claims that she was asking a co-worker a work-related question when
her second-level supervisor (S2) shouted at her. A few minutes later, Complainant placed her
work status on “stress code” and walked away from her work area. S2 went to Complainant’s
cubicle to investigate why Complainant was on “stress code,” but she was not at her
workstation. S2 continued watching Complainant’s status and noticed that Complainant did not
return to work for an hour and a half. When Complainant returned to her work area, S2
approached and asked her to come to her office. There, S2 advised Complainant that she was
being charged Absence Without Leave (AWOL) and asked her to sign a memorandum.
Complainant read the memorandum and started walking to the door with it. S2 asked
Complainant not to leave with the memorandum. Complainant alleged that S2 refused to give
her a copy and grabbed her arm to prevent her from making the copy. Complainant contacted
the Treasury Inspector General for Tax Administration (TIGTA) following the incident.
TIGTA later recommended that Complainant be dismissed for the remainder of the day.
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Complainant was subsequently reassigned to another team based on the recommendation of
TIGTA.

On March 10, 2011, Complainant sent an email to S2 and her Work Leader (WL) asking for
permission to visit the nurse, but neither responded. S2 stated she was not in the office when
Complainant sent the email. When S2 returned to her office, she went to Complainant's work
station to ask if she had been to the Health Unit, but Complainant did not respond. S2 stated
that she went to Complainant's work station several times, and Complainant did not respond to
anything she said for the rest of the day.

On April 19, 2011, Complainant filed an EEO complaint alleging that the Agency subjected
her to a hostile work environment on the basis of sex (female) when her manager grabbed her
arm to prevent her from making a copy of a memorandum regarding Absent Without Official
Leave (AWOL) charges, and her manager ignored her request to go to the nurse.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).1

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. In addition, the Agency found that there
was no evidence that the alleged incidents were based on discriminatory animus. In particular,
as to the AWOL memorandum incident, S2 denied grabbing Complainant’s arm and stated that
when Complainant attempted to walk away with the copy of the memorandum, she told her
they could make a copy together. Complainant became agitated and shouted at S2. S2 walked
back to her office to call Security. S2 further explained that during team meetings, she had
emphasized that employees should only ask questions to On-the-Job Instructors, "Go-To"
employees, the Work Leader, or the manager. With respect to the nurse email, S2 affirmed
that she was not in the office when Complainant sent the email, and after she arrived,
Complainant would not respond to her when she asked several times whether Complainant had
been to the nurse. As a result, the Agency concluded that Complainant failed to show that she
was subjected to a hostile work environment. The instant appeal followed.

1 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(4) as the
issues had been previously raised in a negotiated grievance procedure that permitted allegations
of discrimination. In addition, the AJ initially assigned to the matter denied Complainant’s
motion to amend her complaint to include additional claims on the grounds that the matters
raised were not like or related to the instant complaint. Complainant raised no challenges
regarding these issues on appeal; therefore, the Commission will not address them in this
decision.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the record shows that she was subjected to a hostile
work environment. Complainant claims that she needed to seek professional help for
depression and high stress as a result of the abusive, hostile, and intimidating conduct of her
manager. Complainant alleges that management officials were not truthful during the
investigation. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment Harassment

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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 Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [Complainant's] employment and create an abusive working
environment.” Harris, 510 U.S. at 21. 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 (Mar. 8, 1994)
(Enforcement Guidance on Harris).

Here, Complainant alleged incidents of what she believed to be discriminatory harassment,
including that her manager grabbed her arm to prevent her from making a copy of an AWOL
memorandum and subsequently ignored her request to see the nurse. Even assuming that the
alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
there is no persuasive evidence in the record that discriminatory sex based animus played a
role in any of the Agency's actions.

More specifically, S2 denied grabbing Complainant’s arm. S2 explained that Complainant
disappeared from her work area for an hour and a half without permission. ROI, at 87. When
Complainant returned, S2 issued her an AWOL memorandum. Id. Complainant grabbed the
memorandum after reading it and attempted to walk away with it. Id. S2 asked Complainant
not to leave with the memorandum and offered to make a copy of it with Complainant. Id.
Complainant became agitated and shouted at S2, and S2 returned to her office to call Security
for assistance. Id. Complainant was subsequently reassigned to a new team, and Complainant
has not alleged that any similar incidents have since occurred. Finally, with respect to
Complainant’s request to see the nurse, S2 stated that she was not in the office when
Complainant sent the email. Id. at 88. S2 stated that she attempted several times to talk to
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Complainant after she arrived and received the email, but Complainant refused to respond to
her the entire day. Id. at 89.

As Complainant decided to withdraw her request for a hearing, the Commission does not have
the benefit of an AJ's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The record is clear
that Complainant and her colleagues found working under S2 to be challenging and stressful
due to her strict management style; however, the Commission notes that Title VII is not a
civility code. Rather, it forbids “only behavior so objectively offensive as to alter the
conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S.
75, 81 (1998). The Commission finds that Complainant failed to show by a preponderance of
the evidence that any of the alleged incidents were based on her sex. As a result, the
Commission finds that Complainant has not established that she was subjected to harassment as
alleged.

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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 30, 2015
Date