0120131686
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. 0120131686
Hearing No. 480-2012-00753X
Agency No. IRS-12-0284-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 15, 2013, 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. For the following reasons, the Commission affirms the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge (AJ) finding that Complainant did not demonstrate that she was subjected to a hostile work environment.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected her to a hostile work environment as set forth below.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Examiner at the Agency's Fresno Service Center in Fresno, California. On March 29, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Christian), color (tan), and reprisal for prior protected EEO activity when on one or two occasions she smelled an offensive odor followed by the aroma of strong perfume and, in reporting the incident, was told by her supervisor that "I didn't smell anything until you came (into my office);" and on another occasion or two she observed mucus or a mucous-like substance on her files and desk.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The Agency however filed a motion for a decision without a hearing which was unopposed by Complainant. The AJ granted the Agency's motion finding that there was no genuine issue of material facts in dispute and when the evidence was viewed in the light most favorable to the Complainant no harassment resulting in a hostile work environment was found. Specifically, with respect to Complainant's claim that she smelled a foul odor followed by the aroma of strong perfume, and when she reported it to the supervisor, the supervisor responded that she did not smell anything until Complainant came into the office. The AJ found that the evidence showed that it was undisputed that Complainant wore strong perfume and the supervisor's remark related to the perfume Complainant was wearing. Nonetheless, the supervisor immediately investigated the aroma incident on the day in question. She could not corroborate the presence of any foul odors on that day, and no witness corroborated the presence of such an offensive odor. It was noted that complaints about strong perfume smells had been lodged previously, which, including a grievance about Complainant's use of offensive smelling perfume. In response to these prior complaints, Complainant's supervisor admonished her subordinate female employees to avoid wearing strong perfumes out of respect for the well being of their co-workers.
The record also reflected that on March 1, 2012, an e-mail message was transmitted to all employees designed to mitigate and remedy offensive workplace smells, and that several follow-up measures were taken. The record contained no evidence which indicated that further incidents involving strong aromas reoccurred, and Complainant offered no such evidence. The AJ found that Complainant failed to offer any evidence which suggested that her protected bases were considered regarding this event.
With regard to the mucus incidents, on February 15, 2012, Complainant observed that her case file appeared to be smudged with mucus or as Complainant described it "a big booger." She showed the case file to her supervisor. The supervisor wiped it off with a tissue. Complainant also later reported that she found a similar substance in her desk area on a previous occasion and believed that the substances in question was also a "booger" or soft substances taken from inside one's nose. Nine witnesses were examined during the investigative phase of this claim and none could substantiate Complainant's charges. It was noted that no one responsible for handling work files was found to have at any time inappropriately tampered with the files assigned to Complainant or to any other tax examiner. Moreover, Complainant's supervisor indicated that she believed that what the Complainant showed her was glue residue.
The AJ found that there was no evidence, whatsoever, corroborating Complainant speculation that someone had sprayed the work area with an offensive smelling odor one day and/or had worn a particularly noxious perfume to annoy her because of her race, color, sex, religion or prior EEO activity. It was also determined that there was no evidence to support Complainant's allegation that on two occasions deposits of nose extractions were left on Complainant's work files or at her work station because of her protected status. The AJ found that the allegations involving odors and mucus, themselves, simply did not constitute unlawful harassment.
The AJ found that the incidents cited did not constitute harassment because, when examining all of the circumstances alleged, including "the frequency of the conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with (Complainant's) work performance," Complainant did not show that these isolated incidents could be characterized as abusive, severe or pervasive, or that they affected a term or condition of her employment. The AJ found that Complainant's allegations at most reflected the dynamics of interpersonal relationships between employees and their co-employees and managers and did not rise to the level of harassment. The AJ determined that no evidence was presented that indicated that these isolated events occurred because of Complainant's protected status or that the Agency's responses to the incidents were in any way unreasonable, discriminatory, or retaliatory.
The AJ noted that Complainant indicated that there were too few African Americans employed by the Agency and that she felt isolated in the workplace. The AJ found that beyond Complainant's conclusory allegations that she has been the victim of discrimination and reprisal, she had not offered, and the record did not contain, factual evidence from which a reasonable trier of fact could infer discriminatory or retaliatory motive on any bases. Accordingly, the AJ concluded that Complainant was unable to establish that the she was subjected to harassment resulting in a hostile work environment because of her protected bases with respect to the claims in this complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that since she filed a complaint on October 27, 2010, she has been retaliated against. Complainant indicates that is it clear that EEO does not want to help her and they have separated her issues and minimized incidents that she believes are discriminatory. Complainant sets forth a list of incidents of alleged harassment that has taken place since filing her complaint. Complainant contends that as a result of the alleged harassment she is in poor health and her hypertension is uncontrollable to the point that she has it checked by the Agency's nurse three times a week. Further, Complainant maintains that she was told that the EEO counselor did not want to file her harassment complaint.
In response, the Agency resubmitted the AJ's decision and its final order.
ANALYSIS AND FINDINGS
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. At the outset, we find that there are no genuine issues of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for 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.
We find that the incidents identified in this complaint do not rise to the level of harassment. Assuming for purposes of this decision that these incidents occurred exactly as alleged by Complainant, we must find that, even when considered together, they are not severe and pervasive enough to establish a hostile work environment existed. We also do not find that Complainant in any way demonstrated that these events occurred because of her race, sex religion, color, and/or prior protected EEO activity.
Further, with respect to Complainant's contentions on appeal, we find that Complainant, if she has not done so already, should contact an EEO counselor regarding her claim that she has been subjected to new incidents of harassment and discrimination. However, we did take note of Complainant's claim that she was told that the EEO Counselor did not want her to file an EEO complaint. Complainant did not indicate that she had first-hand knowledge of this matter nor has she indicated that she has been prevented from engaging in the EEO process; nevertheless, we advise Complainant to contact the Agency official responsible for the quality of complaints processing about this claim.
Accordingly, the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. The Agency's final order is hereby AFFIRMED.
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
2
0120131686
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131686