0120111858
09-16-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
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. 0120111858
Hearing No. 550-2010-00041X
Agency No. IRS-09-0096-F
DECISION
On February 10, 2011, Complainant filed an appeal from the Agency's January 12, 2011, final order concerning his 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 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: (1) whether Complainant's allegation that he was the subject of an inspector general surveillance investigation states a claim; (2) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (3) whether Complainant established that the Agency subjected him to hostile work environment harassment on the bases of sex or reprisal for prior protected activity in connection with incidents at a bank audit site.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent, GS-0512-13, at the Agency's Large and Midsize Business Division in San Francisco, California. Complainant's first-level Supervisor was the Team Manager (S1).
In September 2008, Complainant began field work at a bank audit site. The Internal Revenue Service (IRS) office at the audit site shared a common wall with an Office of the Comptroller of the Currency (OCC)1 office and with a conference room used by OCC employees and bank employees. During the relevant time period, Complainant worked alone in the IRS office at the audit site, although other IRS employees would visit on occasion.
On December 18, 2008, Complainant filed an EEO complaint alleging that the Agency subjected him to hostile work environment harassment on the bases of sex (male) and reprisal for prior protected EEO activity when2:
1. He observed unidentified persons, whom he believed to be law enforcement personnel sent by the Treasury Inspector General for Tax Administration (TIGTA), conducting secret surveillance of him at the audit site during work hours, on his commute, and at non-work locations outside of work hours.
2. From September 2008 to April 2009,3 he heard unidentified persons at the audit site making comments he believed were directed at him:
a. Homophobic comments
* When he was in the elevator hallway, a man looked at him with what appeared to be a deep look of consternation. When he returned to the IRS office and closed the door, he heard a man in the OCC office say, "He is a fag."
* When he was in the IRS office with the door closed, he heard a woman in the OCC office say, "Fag."
* When he was in the IRS office with the door closed, he heard a woman in the hallway say, "So that's the fag?"
* When he was in the hallway, he heard a woman in the conference room say, "Fag," at which point the people in the conference room laughed.
* On two or three occasions, when he was in the hallway restroom, he heard someone in the elevator hallway say, "the fag."
* Shortly after he sent an email to TIGTA accusing TIGTA of illegally using law enforcement resources and techniques to conduct actions against him, a door down the hallway from the IRS office opened and he heard a man say, " ... Jesus Christ ... faggot ..."
* When he was in the IRS office with the door closed, he heard someone in the conference room say, "So I'm a faggot."
b. Other critical and negative comments
* When he was in the hallway, he heard a woman in the conference room say, "Retarded," at which point the people in the conference room laughed.
* When he closed the door to the IRS office, he heard a man in the hallway say, "Retarded."
* Immediately after he sat down in the IRS office and turned on a radio, he heard a man in the OCC office say, "Hi, idiot."
* When he was in the hallway restroom, he heard a man in the restroom say, "Stupid."
* He heard someone in the OCC office say, "He's sick."
* When he passed the conference room and looked in through the open door, a woman in the conference room saw him looking in and he heard her say, "Retarded."
* When he was in the IRS office and looked at an incorrect schedule moments before referencing the correct one, he heard someone in the conference room say, "Retarded."
3. In late 2008, he heard "pinging" sounds coming from the public address system at the audit site when he exited the IRS office.
In his EEO complaint, Complainant stated that he was alleging sex discrimination for the following reason: "The sexual harassment actions, in the manner they occurred, probably [would] not have occurred if I was not a male ... Although the sexual harassment comments were homophobic, the comments were meant to insult and degrade a male, regardless of sexual orientation. I am heterosexual."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's April 30, 2010, motion for a decision without a hearing and issued a decision without a hearing on January 6, 2011, finding no hostile work environment harassment.
In his decision, the AJ found that Complainant did not establish that the Agency subjected him to hostile work environment harassment on the bases of sex or reprisal. Regarding the
sex-based claim, the AJ found that, although the record included affidavit testimony from IRS and OCC employees who came into contact with Complainant at the audit site, none of the affidavit testimony corroborated the alleged incidents. In addition, the AJ found no evidence, other than a few episodic references to sexual orientation made by anonymous voices, that the alleged incidents were based on Complainant's sex. Further, the AJ noted that claims based on sexual orientation are generally not cognizable under Title VII.4 Finally, the AJ found that there was no basis for imputing liability to the Agency because it took immediate and appropriate corrective action. The AJ found that the undisputed evidence in the record reflected the following: (i) on October 29, 2008, Complainant reported some of the alleged incidents to S1; (ii) in response, S1 visited the audit site on three occasions to investigate Complainant's concerns but found nothing unusual; and (iii) S1 offered to reassign Complainant to a different case at another audit site or to allow him to continue working on his existing case away from the audit site, but Complainant rejected those offers based on his belief that the same incidents would recur wherever he was located. Regarding the reprisal-based claim, the AJ found no evidence in the record that the alleged incidents were based on Complainant's prior protected EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that it subjected him to hostile work environment harassment as alleged.
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing and reiterated that the Agency subjected him to discriminatory harassment as alleged. The Agency argues that the AJ's determination to issue a decision without a hearing was correct, and urges the Commission to affirm the AJ's decision.
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 (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 the Commission "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").
ANALYSIS AND FINDINGS
Allegation 1 - TIGTA Surveillance Investigation
As an initial matter, we address Complainant's allegation involving TIGTA. Complainant, in essence, alleged that he was the subject of a TIGTA investigation. For example, Complainant averred, "It appears TIGTA ... is in the process of manufacturing something against me, but I am not sure what." In addition, Complainant averred that there has been a "personnel mobilization" by TIGTA and that TIGTA has been subjecting him to the "illegal and corrupt use of law enforcement techniques and resources."
Upon review, we find that allegation 1 should be dismissed pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Commission has consistently held that being the subject of an inspector general investigation does not render an individual aggrieved under the EEOC's regulations. See Mattocks v. Dep't of the Navy, EEOC Request No. 05950549 (Aug. 29, 1996). Moreover, the Commission has previously specifically held that being the subject of a TIGTA investigation fails to state a claim. See Barnes v. Dep't of the Treasury, EEOC Appeal No. 0120072713 (Sept. 5, 2007); Parrelli-Ball v. Dep't of the Treasury, EEOC Appeal Nos. 01A35160, 01A42474 (Apr. 21, 2004). Accordingly, we will not consider allegation 1 as part of Complainant's harassment claim, and will not address it further in this decision.
AJ's Issuance of a Decision without a Hearing
We must 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. The record has been adequately developed, Complainant was given notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate
Hostile Work Environment Harassment - Allegations 1 and 2
To establish a claim of harassment a complainant must show that: (1) the complainant belongs to a statutorily protected class; (2) the complainant 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 the 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). As to element (5), in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See 29 C.F.R. � 1604.11(d); EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, � I (June 18, 1999).
Upon review, we find that Complainant did not establish his claim of harassment. Assuming, arguendo, that Complainant established elements 1 through 4, we find that he did not establish element 5, that there is a basis for imputing liability to the Agency for the coworker harassment at the audit site. Specifically, the record reflects the following: (a) in October 2008, Complainant reported the harassment to S1; (b) in October 2008, S1 offered to speak to OCC management, but Complainant asked her not to do so because he did not believe that such an action would stop the harassment; (c) in November 2008, S1 offered to reassign him away from the audit site, but Complainant asked her not to do so because he did not believe that such an action would stop the harassment; (d) in November 2008, February 2009, and April 2009, S1 visited the audit site on three occasions, but heard and saw nothing unusual. ROI, at 108, 110-12, 219-20; Complainant's May 8, 2010 opposition to the Agency's motion for a decision without a hearing, at 2-3. Although S1 attempted to address Complainant's concerns about the harassment, Complainant did not take advantage of the corrective opportunities offered by S1. Based on the above, we find that the Agency took immediate and appropriate corrective action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find no basis for imputing liability to the Agency. We therefore AFFIRM the Agency's final order.
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.
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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.s signature
Carlton M. Hadden, Director
Office of Federal Operations
_9/16/15_________________
Date
1 The OCC is an independent bureau within the Department of the Treasury.
2 We have reframed Complainant's claim based on his affidavit. We note that Complainant alleged other incidents of harassment not listed here.
3 Complainant worked at the audit site until April 2009. Report of Investigation (ROI), at 216.
4 We emphasize that, since the time the AJ issued his decision, the Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111858
2
0120111858