Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionApr 18, 20140120130837 (E.E.O.C. Apr. 18, 2014) Copy Citation 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. 0120130837 Agency No. IRS110663F DECISION On December 26, 2012, Complainant filed an appeal from the Agency’s final decision 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 deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Bankruptcy Specialist for the Internal Revenue Service in Cincinnati, Ohio. Complainant filed an EEO complaint alleging that she was harassed on the bases of race (Caucasian) and in reprisal for prior protected EEO activity. The incidents alleged include: 1. On April 28, 2010, she received a “threatening” email from the former director asking her to respond to a safety survey; 2. On June 23, 2010, she was berated by her manager for being at her desk while on annual leave; 3. On January 2011, the Territory Manager commented to her during a telephone conversation that she must learn to "quit standing toe-to-toe with management;" 4. Beginning in January 2011 and continuing, although her 2010 annual performance rating was increased via a grievance decision, she still has not received a performance award; 5. On August 3, 2011, her manager denied her request for advanced sick leave; 0120130837 2 6. On or about August/September 2011, management delayed its decision regarding her grievance; and 7. On September 28, 2011, she was verbally counseled by the group manager for having requested a package of paper from the group secretary. The Agency also dismissed several claims for various procedural defects but concluded that the following would be investigated as evidence of the alleged harassment because they involved the same management officials: 1. Beginning in November 2006 to September 2010, she was subjected to multiple removal actions regarding a Restructuring and Reform Act of 1998, § 1203(b)(2) violation for allegedly falsifying a document and lying under oath; 2. On July 1, 2010, she received an annual performance appraisal for the period ending May 31, 2010, reflecting that she was not ratable; 3. On September 29, 2010, she received a memorandum regarding unprofessional behavior; 4. In October 2010, her former manager denied her advanced sick leave under the Family and Medical Leave Act (FMLA); 5. During the period of June 2010 to December 2010, the reviews of her work conducted by a previous manager were inaccurate; and 6. On June 16, 2011, she received a lowered annual performance appraisal for the period ending May 31, 2011. 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 EEOC Administrative Judge (AJ). When Complainant did not request a 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 proffered legitimate and non-discriminatory explanations for the incidents characterized by Complainant as harassment. For example, the “threatening” email was sent to over 100 employees with a photo depicting someone falling down stairs. The subject line read: "We all fall down once in awhile." The graphic and message were intended as a request that the employee take an online survey concerning improving safety in the workplace. With regard to the denial of advanced sick leave, the request was initially denied because of inadequate medical documentation, but subsequently the leave was granted. The Agency further explained that the performance award was delayed because Complainant’s appraisal was increased via a grievance proceeding and was thus beyond the time frame for the award period. Payment for the delayed award was authorized in April 2012. In addition, management asked for an extension to respond to the grievance – to which the union responded “no problem.” The reason Complainant was originally “unratable” was because she had not been performing the duties of her position for the required period of days to support a rating. Finally, Complainant was making a large number of copies for an outreach presentation and 0120130837 3 asked a secretary outside of her division for more paper. The secretary later told Complainant’s supervisor, and Complainant was reminded that she should bring her division’s paper supply to the copier when making a large number of copies. With regard to the phone incident, the Agency acknowledged that the manager’s conduct was rude on the day in question but concluded that, beyond that one isolated incident, Complainant failed to show she was subjected to a pattern of severe or pervasive conduct that amounted to harassment. This appeal followed. ANALYSIS AND FINDINGS To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis, in this case, race or prior protected activity. Only if Complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself. Initially we note that the relationship between Complainant and the Supervisory Revenue Officer was acrimonious and that a significant amount of distrust existed in the workplace, causing Complainant to believe that everything that occurred, even mundane situations concerning copier paper and emails about safety surveys, were part of a larger plan to undermine her. However, Complainant has failed to prove that any of the alleged incidents actually adversely affected her or were not attributable to her own conduct, and more importantly, she has presented no persuasive evidence that management’s conduct was unlawfully motivated by her race or her prior protected activity. Accordingly, Complainant’s harassment claim fails, and we AFFIRM the Agency’s final decision. 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 0120130837 4 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 Date April 18, 2014 Office of Federal Operations Copy with citationCopy as parenthetical citation