0120130137
07-15-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120130137
Hearing No. 430-2011-00369X
Agency No. IRS-10-0530-F
DECISION
On August 21, 2012, Complainant filed an appeal from the Agency's final action 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final action.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected her to hostile work environment harassment on the bases of race, sex, color, disability, age, or reprisal for prior protected EEO activity from January 2010 to January 2011.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-9 Stakeholder Relationship Tax Consultant (TC) at the Agency's Wage and Investment Division, Office of Stakeholder Partnership Education and Communication (SPEC), in Columbia, South Carolina. Beginning on January 19, 2010, Complainant's First Level Supervisor was the SPEC Territory Manager (S1 - Caucasian, male, white, visual impairment, 54).
Complainant filed an EEO complaint alleging that, from January 2010 to January 2011, the Agency subjected her to hostile work environment harassment on the bases of race
(African-American), sex (female), color (dark complexion), disability (visual impairment),
age (50), and reprisal for prior protected EEO activity (March 2010 request for reasonable accommodation).1 In support of her claim, Complainant cited the following incidents:2
1. From January to April 2010, S1 denied her the opportunity to work more than four hours of overtime;
2. In January 2010, S1 instructed her to submit a ticket to request a key and alarm code to the Myrtle Beach office, but the Security Officer later informed her that a manager had to submit the ticket;
3. From February to April 2010, S1 emailed her about the status of her computer, Form 13533, prepaid cards, her travel voucher, her use of Link and Learn, and her opinion on the past filing season;
4. In March 2010, S1 denied her request for a portable printer;
5. In March 2010, S1 denied her request to attend union steward training scheduled for April 6-9, 2010;
6. In March 2010, S1 refused to meet with her in the presence of a union representative to discuss her concerns about the work environment;
7. In May 2010, S1 gave her an unfair mid-year review;
8. On several occasions, S1 denied her the opportunity to work occupational flexiplace; and
9. S1 denied her a GS-11 TC detail and did not announce three GS-11 TC vacancies.
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 AJ. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on June 29, 2012.
In her decision, the AJ analyzed Complainant's complaint under a disparate treatment framework. Initially, the AJ found that Complainant did not establish a prima facie case of discrimination on the alleged bases. Next, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ found that Complainant was unable to rebut the Agency's reasons.
When the Agency did not issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant did not prove that the Agency discriminated against her as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant argued the AJ erred in finding that she did not establish a prima facie case of discrimination the alleged bases. Citing her formal complaint, her affidavit testimony, and a coworker's (CW) affidavit testimony, Complainant argued that she "has clearly set forth a scenario of discrimination."
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A (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").
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the AJ's intent to issue a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement, and she was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment Harassment
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 Sys., 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. EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on her race, sex, color, disability,3 age, or prior protected EEO activity.
Regarding incident 1, S1 averred that he approved each TC to work four hours of overtime from January to April 2010. The record contains a January 27, 2010 email from S1 to the TCs stating, "We have limited overtime funds so to be fair to all I am limiting hours to 4 per TC." ROI, at 285. In addition, the record contains minutes from a February 4, 2010 meeting stating that S1 approved each TC for only four hours of overtime for the quarter. Id. at 234-35. Although Complainant averred that it was understood that each TC could work four hours of overtime per pay period, the record reflects otherwise. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 2, S1 averred that he requested the key and alarm code for Complainant after the Security Officer made him aware that a manager had to make the request. The record contains January and February 2010 emails reflecting the following sequence of events: (i) S1 requested a key for Complainant from an employee in the Myrtle Beach office; (ii) the employee told S1 that S1 would need to submit a ticket; (iii) S1 forwarded the employee's response to Complainant and instructed her to "take the below action;" (iv) Complainant submitted a ticket; (v) the Security Officer told Complainant that management authorization was required; (vi) Complainant told the Security Officer that she submitted the ticket pursuant to S1's instructions; (vii) S1 provided the Security Officer with the required management authorization; and (viii) the Security Officer told Complainant that S1 had provided the required management authorization. Id. at 129-33, 293. Although Complainant averred that S1 "did this" because he did not want her working in the Myrtle Beach office, the record does not show such motivation by S1. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 3, the record reflects that S1 emailed Complainant on numerous occasions about the status of her computer, Form 13533, prepaid cards, her travel voucher, her use of Link and Learn, and her opinion on the past filing season. Id. at 127, 144-46, 154-58, 182, 196, 198-200, 254-256. Although Complainant averred that S1 was harassing her by his constant emailing, the record reflects that the emails involved work-related issues and did not reference Complainant's protected classes. Although Complainant averred that S1 documented many of the emails in her employee personnel file (EPF), we note that the emails mentioned Complainant's untimely completion of work and the record reflects that S1 had a policy of recording an employee's late response or late work in the EPF. Id. at 232. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 4, S1 averred that a portable printer was not normally authorized equipment for an employee in Complainant's position, so he asked her to clarify why she needed one. The record contains March 2010 emails reflecting the following sequence of events: (i) Complainant requested a portable printer; (ii) S1 asked Complainant why she needed a portable printer; (iii) Complainant responded, "I need to print everything in order to read it, the printer will make it possible for me to print and read without returning to the office to print and then read the document ... I am requesting a [portable] printer for field use, to keep up with email responses;" and (iv) S1 told Complainant that she was not profiled for a portable printer through Information Technology and that he did not think answering email was justification. Id. at 316-18. Although Complainant averred that S1 should have suggested she use the reasonable accommodation process to acquire a portable printer instead of simply denying her request, we disagree.4 Here, Complainant did not let S1 know that she needed a portable printer for a reason related to a medical condition. Generally, an employer is not required to ask whether a reasonable is needed when an employee has not asked for one; the individual with the disability - who has the most knowledge about the need for reasonable accommodation - must inform the employer that an accommodation is needed. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the American with Disabilities Act, No. 915.002, Question 40 (as revised Oct. 17, 2002). Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 5, S1 averred that he denied Complainant's training request for workload reasons because the training was near the end of the filing season. The record contains a March 24, 2010 denial of training from S1 stating that the April 6-9 training dates were during the next to last week of the filing season, that the time was historically extremely busy for SPEC TCs, and that there were other training dates available after April 15. ROI, at 222. Although Complainant averred that she could handle phone calls while away and that she had a backup to cover her duties, we note that the union acknowledged in a March 26, 2010 email that it "can see where [Complainant] not being there would create an inconvenience to [S1]." Id. at 216. Although Complainant averred that S1 approved leave for other employees that week, the record reflects that S1 did not approve four full days of leave for any other employee during the April 6-9, 2010 time period. Id. at 226. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 6, Complainant averred that she wanted to meet with S1 with a union representative, but that S1 told her he would only meet with her alone. The record contains a March 19, 2010 email from S1 to the union stating that he received the union's request for a three-way meeting, that at this point he would rather meet just with Complainant, and that Complainant should contact him to set up a date and time. Id. at 327. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 7, the AJ stated that Complainant "pursued this claim under [union] procedures and the matter has been resolved therein." Because Complainant did not dispute this on appeal, we will not address this incident further in our decision.5
Regarding incident 8, S1 averred that Complainant's flexiplace in the Myrtle Beach office, which her previous manager approved, ended on April 30, 2010 when her assignment there ended. In addition, S1 averred that he denied Complainant's request for flexiplace in January 2011 because there was no space available in the requested office. The record contains a
May 4, 2010 email from S1 informing Complainant that her flexiplace in the Myrtle Beach office "ran out" on April 30. Id. at 261. In addition, the record contains January 13, 2011 emails where S1 asked a manager if there was space available in the Florence office for Complainant to work flexiplace and the manager responded that there was no space available. Id. at 304. Although Complainant averred that another employee was allowed to work flexiplace in the Beaufort office from September 2006 to March 2010, we find that Complainant and the employee are not similarly situated. Specifically, the record reflects that S1 began managing Complainant's group in January 2010 and that the employee only worked for S1 for one week before leaving the group. Id. at 13, 213. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding incident 9, S1 averred that he did not have a GS-11 TC detail available during that time and that he anticipated that there would be other GS-11 TC vacancies announced in the future, budget permitting. In addition, S1 averred that he has promoted a Caucasian male, a Caucasian female, a Native American female, and an African-American female since he began managing Complainant's group in January 2010. Id. at 211-12, 360. Although Complainant averred that S1 should have detailed her to a GS-11 TC position because he detailed a GS-11 Caucasian female to a GS-12 position, the record does not show that a GS-11 TC detail was available. Moreover, the record does not show that S1 failed to announce any GS-11 TC vacancies for discriminatory reasons. Based on the above, we find no evidence that the incident was based on Complainant's protected classes.
Regarding race, sex, color, and age in particular, we note that CW (African-American, female, black, 48) averred that she believed S1 treated Complainant differently on those bases. CW, however, did not explain why she believed that. In addition, CW averred that S1 acted differently towards Complainant than towards herself or other coworkers. Given that CW and Complainant are in the same protected classes of race, sex, color, and age, we find that CW's testimony does not show that S1's actions towards Complainant were based on her race, sex, color, and age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action.
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.
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
__7/15/15________________
Date
1 The record reflects that S1 approved Complainant's request for reasonable accommodation. ROI, at 112, 284.
2 For purposes of clarity, we have rephrased and renumbered the incidents based on Complainant's affidavit testimony.
3 We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act.
4 The record reflects that Complainant subsequently requested a portable printer through the reasonable accommodation process and that S1 approved the request. ROI, at 284.
5 Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. EEO MD-110, Ch. 9, � IV.A.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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