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

Equal Employment Opportunity Commission

Sep 10, 2015

01-2012-1560-0500 (E.E.O.C. Sep. 10, 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. 0120121560

Hearing No. 540-2011-00092X

Agency No. IRS-10-0672-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 17, 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., 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’s review is de novo. 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 Contact
Representative in the Wage and Investment/Accounts Management division of the Agency’s
Call Center in Denver, Colorado. Complainant was one of several new hires in October 2009.
On or about October 23, 2009, a training instructor (Instructor) made comments describing
how Contact Representatives would need to learn to adapt to different kinds of callers,
including callers who were “rude or nasty.” The Instructor further described calls she had
received from Puerto Rico, South America, France, and individuals who speak Portuguese.
The Instructor then stated that “Puerto Ricans were the rudest callers,” that they had
attitudes…and would yell and curse,” and that she did not like taking their calls. That same
day, Complainant and other class members complained about the comments to Complainant’s
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first-level supervisor (S1). S1 spoke to the Instructor about the incident and informed her that
an employee was offended by her comments. The next day, the Instructor apologized to the
class for her comments and explained that she did not intend to offend anyone. Complainant
believed that following the apology, other employees were “watchful of her.” In addition,
Complainant believed that Agency management micromanaged all trainees.

In January 2010, a different coach would sit with Complainant each week to listen in on the
calls Complainant received and provide guidance and feedback. Complainant believed that one
Coach (Coach 1) was rude to her during one of the weeks. For example, Coach 1 interrupted
Complainant to correct her errors while she was talking to taxpayers and, on one occasion,
criticized Complainant for having the volume on her headset at its maximum level. In
addition, Coach 1 asked Complainant why she “had to go to the bathroom so much” and
encouraged her to take another call before using the bathroom.

Additionally, in January 2010, Complainant informed S1 that she had trouble seeing her
computer monitor because of eyesight problems and the office lighting. S1 contacted the
Agency’s Reasonable Accommodation Coordinator (RAC) and provided Complainant a copy
of the reasonable accommodation request form. On January 20, 2010, Complainant submitted
the form requesting a window cubicle or additional lighting. Complainant was notified that she
needed to submit medical in support of her request and the necessary documentation was
forwarded to Complainant's physician with her approval. In the meantime, RAC inquired into
the office’s lighting, but learned that the Health and Safety Office would not permit any
changes. In addition, S1 allowed Complainant to bring in her own lamp from home. S1
followed up with Complainant about submitting the required medical documentation, and
Complainant subsequently informed management that the accommodation request could be
closed. Further, Complainant stated that the lamp corrected the issues with her eyesight.

On March 1, 2010, S1 notified Complainant that she could not yet be certified as "being
proficient in handling questions on agent group 21, SP IMF Accounts.” This determination
was based on reports S1 received from Coach 1 and the group Lead Contact Service
Representative (Lead CSR). Both reported Complainant’s training deficiencies and difficulties
and her unpreparedness to handle taxpayer calls on her own. S1 constructed a plan for
Complainant to receive additional coaching to enable her to complete the training process and
become certified.

On or about December 1, 2009, Complainant was notified that the Office of Personnel
Management (OPM) had rejected her Electronic Questionnaire for Investigations Processing (e-
QIP). Complainant was required to complete a new e-QIP form and a new Form 306,
Declaration for Federal Employment so that OPM could conduct the mandatory background
investigation. Complainant completed and signed a new e-QIP form and a new Form 306. On
the Form 306, Complainant disclosed that she had Federal tax debt for tax years 2006 and
2007; however, she failed to disclose that she also had a Federal tax debt for tax year 2008.
The Agency subsequently discovered that Complainant also had a tax debt for tax year 2008.
On April 27, 2010, S1 interviewed Complainant. Complainant could not explain the
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inaccuracy on her Form 306 stating that she did not think she owed taxes for 2008, that she
realized she owed taxes when she looked at the return, and that she thought her refund for tax
year 2009 would pay off her balance due for tax year 2008. S1 forwarded the results of the
interview to upper management and the Human Resources Specialist. Based on all of the
evidence, Complainant’s third-level supervisor (S3) determined that it would be appropriate to
terminate Complainant during her probationary period. On or about May 19, 2010, S1 met
with Complainant and notified her that the Agency intended to propose her termination based
on her failure to disclose her Federal tax debt for tax year 2008. S1 provided Complainant the
opportunity to resign; however, she declined. On May 26, 2010, S3 proposed Complainant’s
termination based on her failure to accurately complete her employment documentation.
Complainant responded, but on July 10, 2010, S3 sustained the charge and removed
Complainant during her probationary period based on the inaccurate disclosure on her Form
306.

On September 21, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
national origin (Puerto Rican), disability, and age (55) as evidenced by multiple incidents
including, inter alia, her training instructor made inappropriate comments about her national
origin; her Coach and Lead treated her rudely and told her that she did not know what she was
doing; her Coach told her not to drink water so she would not have to go to the bathroom so
much and told her that she could not use the bathroom; her Coach did not certify her to do her
job as a contact representative; her manager and her Lead made discriminatory remarks to her
and engaged in exaggerated micromanagement intimidating techniques; from January 2010
through June 2010, management did not take her physical disabilities into consideration; her
Lead attacked her competence, ability, and intellect and accused her of not working fast
enough; and, her manager and Lead monitored her phone calls to discourage her and force her
to resign.

In addition, Complainant alleged that the Agency discriminated against her based on her
national origin (Puerto Rican), disability, and age (55) when she was terminated from her
position of Contact Representative on July 10, 2010, during her probationary period.1

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 the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on January 6, 2012.

In the decision, the AJ determined that Complainant’s hostile work environment claim must
fail. Regarding Complainant’s claim that she was subjected to harassment based on her
national origin, the AJ noted that the record showed that the Instructor made insulting remarks
about Puerto Ricans on one occasion. However, the AJ concluded that after Complainant

1 Complainant withdrew reprisal as a basis of discrimination during the investigation.
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reported S1, S1 spoke to the Instructor about the comments, and the Instructor apologized to
the class. Given the Agency’s immediate and appropriate response, the AJ found that there
was no basis to impute liability to the Agency with respect to this incident. Additionally, the
AJ found that there was no evidence that any of the remaining claims were based on
Complainant’s national origin.

With respect to Complainant’s claim that she was harassed based on her age, the AJ
determined that Complainant’s subjective beliefs were not evidence of discriminatory animus.
For example, Complainant believed that Coach 1 and the Lead CSR were rude to her and told
her that she did not know what she was doing because they believed that she had memory
problems. Further, Complainant believed that S1 was not capable of handling a mature and
experienced professional woman in her team and that she was monitored six weeks longer than
anyone else which made her feel that her mind was not alert enough to be trusted. The AJ
concluded that there was no evidence that Agency officials thought those things and that
Complainant failed to produce any evidence of age discrimination.

As to Complainant’s claim of discriminatory harassment based on her disability, the AJ again
found that Complainant’s subjective beliefs were not evidence of discriminatory animus. For
example, Complainant believed that Coach 1 did not think that Complainant could be
productive enough if she had to go to bathroom so much. Complainant explained that she
needed to use the bathroom a lot because of her high blood sugar levels; however, there was
no evidence that Coach 1 knew of Complainant’s high blood sugar levels. Likewise,
Complainant believed that the Lead CSR’s attacks on her competency, ability, and intellect
were due to her carpal tunnel syndrome. The AJ determined that evidence that management
made Complainant feel like she needed to keep up was not evidence of disability
discrimination. Further, Complainant presented no evidence that the Lead CSR knew of
Complainant’s carpal tunnel syndrome. As a result, the AJ found that Complainant had not
been subjected to a hostile work environment as alleged

Next, the AJ determined that Complainant failed to show that the Agency denied her
reasonable accommodation. Complainant offered no evidence that her eyesight issues
constitute a disability. Moreover, Complainant withdrew her request for reasonable
accommodation after she failed to provide the requested medical documentation and, instead,
brought in her own lamp to address the problem. Complainant did not request a reasonable
accommodation for any of the other medical conditions, assuming that they constitute
disabilities. Finally, Complainant presented no evidence that the Agency was aware that she
had other disabilities or that they might require a reasonable accommodation. Accordingly, the
Agency found that Complainant had not been denied reasonable accommodation in violation of
the Rehabilitation Act.

Finally, as to her termination, the AJ determined that Complainant failed to produce any
evidence from which an inference could be drawn that the Agency terminated her due to her
national origin, age, or discrimination. As a result, the AJ found that Complainant had not
been discriminated against as alleged. The Agency subsequently issued a final order fully
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implementing the AJ’s decision. Complainant filed the instant appeal without timely
submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment Harassment

To establish a claim of harassment a complainant must show that: (1) she belongs to 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 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).

Therefore, 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, age,
national origin, or disability). Only if Complainant establishes both of those elements, hostility
and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was subjected to a hostile work environment as evidenced by multiple incidents.
Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant failed to establish that she was subjected to a discriminatory hostile work
environment. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.
With respect to the Instructor’s offensive remarks, the Commission concurs with the AJ’s
determination that the Agency took prompt and effective action upon Complainant’s report.
The record reveals that after Complainant reported the comments to S1, S1 spoke to the
Instructor, and the Instructor apologized to the class the very next day. There is no evidence
that any similar conduct occurred. Thus, nothing in the record shows that the Agency's
corrective actions were insufficient or inappropriate. As such, the Commission finds that
Complainant failed to establish that the Agency should be held liable for the Instructor’s
conduct. Complainant’s claim that she was subjected to a discriminatory hostile work
environment fails.

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Disparate Treatment

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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record and assuming Complainant established a prima facie case of
discrimination on all of the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. Specifically, Complainant was
removed from her position during her probationary period because she failed to accurately
complete her employment documentation. ROI, at 245. S1 conducted a fact-finding interview
with Complainant after the Agency discovered an issue in her documentation regarding a
delinquent Federal debt. Id. The information Complainant provided during the investigation
was determined to be inaccurate as she failed to disclose all of her debt. Id. As a result, S3
issued Complainant a Notice of Termination effective July 10, 2010. Id. at 156-57. The
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was a pretext for discrimination. As a
result, the Commission finds that Complainant was not subjected to discrimination as alleged.

Finally, to the extent that Complainant alleges that the Agency failed to reasonably
accommodate her disability the Commission agrees with the AJ that Complainant’s claim must
fail. Assuming arguendo that Complainant is a qualified individual with a disability, the record
reveals that Complainant’s only request was for better lighting for her eyesight. ROI, at 81-
82. The Agency requested medical documentation in support of her request; however,
Complainant failed to provide the requested documentation and the request was closed. Id. at
240. Nonetheless, Complainant resolved the lighting issues by bringing in her own lamp. Id.
at 81. Complainant admits that she did not request any other accommodation. Id. at 82.
Accordingly, the Commission finds that the Agency did not deny Complainant reasonable
accommodation in violation of the Rehabilitation Act.

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 order, because the Equal Employment Opportunity Commission
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Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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

September 10, 2015
Date