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

Equal Employment Opportunity Commission

Aug 14, 2015

01-2012-3501-0500 (E.E.O.C. Aug. 14, 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. 0120123501

Hearing No. 520-2011-00277X

Agency No. IRS-10-0729-F

DECISION
Complainant filed an appeal from the Agency’s August 9, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
Final Order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Collection
Representative, also known as a Contact Representative, at the Agency’s Small Business/Self
employed facility in Holtsville, New York. On November 23, 2010, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the bases of sex (female),
age (61), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when:

1. Complainant has been passed over for training and advancement opportunities in favor
of younger employees, on November 30, 2010, January 2009, and October 2008.

2. On July 22, 2010, Complainant received a Contact Memorandum on Workplace
Misconduct.
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3. On June 21, 2010, Complainant’s supervisor, S1, gave her a lowered annual appraisal,
pulled her out of identified training to discuss, and pressured Complainant to sign, the
appraisal without sufficient time for review.

4. In February 2010, Complainant’s team Lead, E1, was abusive to her, yelling and
pounding on E1’s desk.

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. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s July 2, 2012
motion for a decision without a hearing and issued a decision without a hearing on July 30,
2012.

In her Decision, the AJ found that the material facts were undisputed. The AJ assumed,
without so finding, that the incidents of harassment occurred as Complainant described,
drawing every reasonable inference in Complainant’s favor as required for summary judgment.
Even so, the AJ found that Complainant did not establish a prima facie because Complainant
did not show any nexus between her sex, age, or prior EEO activity and the alleged
discriminatory incidents. Even if she had established a prima facie case of harassment on any
basis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its
actions that Complainant failed to show were a false or a pretext to mask discrimination.

With regard to Complainant’s claim regarding training, the AJ found that Complainant did not
identify any training that she was denied (or “passed over”) so that other employees could
attend, and the AJ found that Complainant expressly admitted this.

Regarding Complainant’s claim that she received a contact memorandum regarding her
conduct, the AJ found that this conduct occurred after S1, her supervisor, asked if
Complainant wanted to review her performance appraisal with her. S1 noted in the
memorandum that Complainant became loud and made aggressive, unprofessional statements
outside of S1’s office. The AJ note that Complainant did not deny that she made the comments
but attributed the issuance of the memorandum to S1’s efforts to obstruct Complainant’s career
while facilitating the way for Complainant’s coworkers to succeed. The AJ found that when
asked, Complainant stated that she believed S1’s animosity toward her had its source in the fact
that Complainant was able to raise her children and take care of herself on her own, which
Complainant believed S1 resented. The AJ found that Complainant did not show that S1 was
motivated by discrimination rather than by the unprofessional, loud, and aggressive conduct
displayed by Complainant and described in the memorandum.

With respect to Complainant’s claim regarding her performance appraisal, the AJ noted that
Complainant disagreed with S1’s assessment of her work claiming in part that some of the
errors noted by S1 were not really errors, but again Complainant opines that S1 does not wish
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for Complainant to succeed and is therefore disproportionately critical of her work. The AJ
found that Complainant did not present any evidence that her work product was better than S1
believed it was.

The AJ considered Complainant’s claim that Complainant’s team lead, E1, yelled at her and
created a hostile work environment when he pounded his fists on his desk. The AJ observed
that in E1’s statement, E1 denied raising his voice toward Complainant and denied pounding
his fists on his desk when Complainant wished to continue a conversation that had ended.
Rather, the AJ found that E1 explained that he found Complainant’s conduct during a team
meeting to be inappropriate because she devoted much of her contribution at the meeting to
explaining why she could not finish her work on time and could not be prepared for the
meeting as she was expected to be. The AJ considered that even if this incident occurred as
Complainant claimed, including E1 yelling at Complainant in an unprofessional manner as well
as pounding his fists on his desk and rose to the level of harassment, Complainant did not show
that E1’s conduct was motivated by Complainant’s sex, age, or Complainant’s prior EEO
activity.

Accordingly, the AJ found that drawing every reasonable inference in Complainant’s favor,
Complainant did not present evidence that she was subjected to sex, age, or reprisal
discrimination as alleged. The Agency subsequently issued a Final Order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
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Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given: (1) ample notice of the proposal to issue a decision without a hearing; (2) a
comprehensive statement of the allegedly undisputed material facts; (3) the opportunity to
respond to such a statement; and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf.

29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their 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 Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
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).
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In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are undisputed and where witnesses disagree concerning a tone of voice or
display of emotion, we draw every reasonable inference in Complainant’s favor, as did the AJ.

Harassment

We find that for purposes of summary judgment, we assume that E1 did yell at Complainant
and when Complainant would not discontinue her conversation with him, E1 pounded his fists
on his desk in an effort to intimidate Complainant. We consider additionally, that Complainant
was the recipient of discipline and a memorandum of contact from S1, for unprofessional
conduct which Complainant claims did not occur, and we assume it did not occur as S1 states.
We find, nevertheless, that Complainant did not present evidence to show that any of the
incidents occurred because of Complainant’s sex, age, or in reprisal for her prior EEO
activity. Complainant presented no evidence that E1 or S1 considered her sex or age or prior
EEO activity in the actions they took to address Complainant’s conduct. We find that
Complainant failed to present evidence that she was subjected to discriminatory harassment as
alleged.

Disparate treatment

We concur with the AJ that Complainant did not identify any training or advancement
opportunities with specificity, that she had been denied, or “passed over” and accordingly,
concur that Complainant failed to establish a prima facie case with respect to claim (1)
(training and advancement opportunities).

We concur with the AJ, that the Agency articulated legitimate, nondiscriminatory reasons for
the actions described in the complaint. We find that Complainant and S1 disputed errors in
Complainant’s work that S1 considered in the rating she gave Complainant for the identified
performance appraisal period. We find that Complainant labeled the same issues with her
work as “erroneous errors” and insisted they were not errors as S1 stated. Complainant states
that she successfully addressed that dispute through other means.1

None of the evidence
Complainant presented indicates that her sex, age, or prior EEO activity motivated S1’s rating.
We find, as did the AJ, that male employees received lower appraisal ratings in 2010 from S1.
As an explanation for Complainant’s belief that age discrimination informed S1’s actions,
Complainant offers only that S1 would comment that Complainant and S1 were close in age
and that S1 also wanted to retire. We find that Complainant presented no evidence from which
a trier of fact could conclude that her age played any role in S1’s rating decisions.

1 Complainant states that she sought the help of the union with respect to her performance
rating itself, leaving only the manner and circumstances under which it was delivered a claim
in the instant complaint and an incident of Complainant’s overall harassment claim. Even if
the actual rating was at issue, we find no discrimination in the rating itself.
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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Order 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
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.
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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 Complainants 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

August 14, 2015
Date