0120130296
09-25-2014
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. 0120130296
Hearing No. 550-2011-00010X
Agency No. 10-0108-F
DECISION
Complainant timely filed an appeal from the Agency's September 7, 2012, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that she was subjected to unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-5 Group Secretary at the Agency's San Jose, California facility. Complainant was hired by the Agency on February 17, 2009, and subject to a probationary period.
As a Group Secretary, Complainant worked with a group of Internal Revenue Service (IRS) Agents who conducted tax audits. Complainant was responsible for preparing and maintaining records for the Agents, including records pertaining to time and attendance cards (SETR or Single Entry Time Reporting) and Agent cases (ERCS or Examination Returns Control System). Complainant resigned from the Agency during her probationary period, effective October 16, 2009.
On January 10, 2010, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against and harassed her on the bases of disability and age (born in 1946) when it forced her to resign effective October 16, 2009.
In an investigative statement, Complainant contends that her supervisor's (S1) actions forced her to resign from the Agency. Complainant gave examples of incidents that she believed forced her to resign. Specifically, Complainant stated that she received a note from S1 that asked Complainant to find an Agent's personnel binder as soon as possible. Complainant stated that the binder was found in a Manager's office within a day or two after Complainant received the note. She stated that S1 had given the binder to the Manager, and S1 had forgotten she had given the binder to the Manager. Complainant stated that S1 commonly misplaced things.
Complainant further stated that S1 gave her negative feedback on her Midyear Review in August 2009. Complainant also stated that S1 did not allow her to take optional Electronic Learning Management Systems (ELMS) online training courses or to attend a training course in Philadelphia, Pennsylvania. Complainant further stated that S1 issued a memorandum of counseling to her dated September 14, 2009, based on a complaint by another employee who claimed that Complainant engaged in rude behavior.
S1 (born in 1956, non-disabled) stated that Complainant could not perform the duties of her position. S1 stated that Complainant did not properly prepare the Group's timesheets and failed to correct her errors, and that another secretary had to correct the timesheets after Complainant left the Agency. S1 further stated that Complainant made many mistakes closing cases, including sending cases to the wrong place. S1 stated that "day after day," one of the other secretaries tried to assist Complainant with her duties, but "nothing ever stuck" with Complainant. S1 stated that when Complainant became stressed, she yelled at people. S1 stated that she witnessed Complainant screaming at one of S1's employees because Complainant could not figure out her (the employee's) timesheet. S1 stated that she counseled Complainant about this incident because it could have caused a hostile work environment, and immediately afterwards, Complainant submitted a letter of resignation to Human Resources
S1 stated that Complainant also yelled at and hung up on an employee on the telephone who was trying to help her lock a mailbox, and the employee complained to her manager about Complainant. S1 stated that she counseled Complainant about this, and Complainant again put in a letter of resignation with Human Resources. S1 stated that she believed that Complainant did not like negative feedback and submitted letters of resignation three times. S1 stated that she never asked Complainant to resign, but Complainant told her that she would resign.
The AJ's Decision
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 AJ. Complainant timely requested a hearing. On January 31, 2011, the Agency moved for a decision without a hearing, to which Complainant responded in opposition on March 31, 2011. On August 8, 2012, the AJ issued a decision without a hearing in favor of the Agency.
Specifically, the AJ assumed for the sake of argument that Complainant is a qualified individual with a disability but found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment. The AJ further found that there was no evidence that the alleged actions were based on Complainant's age or disability. Finally, the AJ concluded that there was no evidence that Complainant was constructively discharged because the alleged actions did not make the workplace intolerable for Complainant, and the evidence indicated that Complainant resigned because of medical reasons. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates arguments raised before the AJ, including her claims that a security employee refused to assist her in locking a mailbox, and a supervisor ordered Complainant to close tax cases for which the supervisor refused to provide Complainant with necessary codes and signatures. The Agency requests that we affirm its final order.
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, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge'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 id., at Chap. 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").
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 Defense, EEOC Appeal No. 01A24206 (July 11, 2003). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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. Texas Dep't of Community 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, 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 environment, 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).
Upon review, we first find that Complainant's allegation that S1 asked her to find a missing personnel binder does not involve an adverse employment action. Complainant has not shown how this alleged action resulted in a tangible change in her duties or working conditions that constitutes a material employment disadvantage. See Stewart v. Evans, 275 F.3d 1126, 1134 (DC Cir. 2002). Therefore, Complainant cannot prevail on her claim that this action constituted unlawful disparate treatment.
Regarding the remaining claims, we assume, arguendo, that Complainant is a qualified individual with a disability and established a prima facie of discrimination on all alleged bases. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, according to Complainant's Midyear Review in August 2009, Complainant was rated "Fails" on Workgroup Involvement and Timekeeping because Complainant made numerous work mistakes. Specifically, S1 stated that there were "consistent and repetitive problems" with Complainant's timekeeping and ERCS controls, yet when Complainant was asked about the problems, she blamed someone else or had an excuse. The Midyear Review further stated that Complainant was not improving, most of the Agents' time and attendance records were incorrect, and the Agents spent time correcting the errors. The Midyear Review also rated Complainant as "Fails" in Workgroup Interaction because of an incident wherein Complainant shouted at an Agent over the telephone concerning a timekeeping problem.
S1 also stated that she issued Complainant a memorandum of counseling because Complainant yelled at and hung up on an employee on the telephone who was trying to help her lock a mailbox,1 and that the employee complained to her manager about Complainant. In the Midyear Review, S1 further wrote that she had asked Complainant not to spend "so much time taking ELMS classes and [to] start some 'hands-on' learning by checking and double-checking your work."
In an attempt to prove pretext, Complainant alleged that all the long-term secretaries were able to attend ELMS training sessions through federal venues and online training. However, these secretaries were not under S1's supervision, nor were they probationary employees. Therefore, they were clearly not similarly-situated to Complainant. Moreover, the record reveals that at the time Complainant received her Midyear Review, she had already completed twelve ELMS courses and had completed all her mandatory training.
We find that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that the Agency's legitimate, non-discriminatory explanations for its actions are pretext for unlawful discrimination. Consequently, we find that the AJ properly found that Complainant failed to prove that she was subjected to disparate treatment.
With respect to Complainant's harassment claim, we find that the alleged actions are not severe or pervasive enough to constitute a hostile work environment. Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we further find that the AJ properly found that Complainant failed to prove that she was subjected to unlawful harassment.
Constructive Discharge
Finally, we note that Complainant asserts that the Agency's actions forced her to involuntary resign from the Agency, i.e., constructive discharge. In order to prove constructive discharge, a complainant must show that: (1) a reasonable person in her position would have found the working conditions intolerable; (2) the conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990).
In this case, there is no evidence that Complainant's working conditions were intolerable. Also, there is no evidence that the Agency's actions were motivated by unlawful discrimination. As such, we find that the AJ properly found that Complainant failed to prove that she was constructively discharged.
CONCLUSION
Accordingly, 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 order for the reasons set forth in this 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 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
September 25, 2014
Date
1We note that Complainant also refers to the locked item as a "cabinet."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130296
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130296