Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

May 29, 2013

0120120405 (E.E.O.C. May. 29, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120120405

Hearing No. 420-2011-00118X

Agency No. IRS-10-0568-F

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 30, 2011 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. 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 Supervisory
Revenue Officer in the Agency’s Small Business/Self Employed Division in Birmingham,
Alabama. The Treasury Inspector General for Tax Administration (TIGTA) received a
complaint from one of Complainant’s subordinates alleging that Complainant offered to ensure
she was promoted if she would be Complainant’s “ears and eyes” in the group. The employee
reported that Complainant retaliated against her after she stopped complying. TIGTA referred
the matter back to management and management assigned the matter to an outside Territory
Manager (TM) for an investigation. TM interviewed Complainant, the subordinate, and all
members of her Group. In March 2010, TM submitted his findings to Complainant’s second-
level manager (M2) who completed a report of the investigation. M2 concluded that
Complainant had befriended the subordinate and that an inappropriate relationship may have
played a part in an appearance of favoritism. Additionally, there were concerns with
Complainant’s integrity and the dysfunction of the entire group. Finally, M2 concluded that,
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based on her failure to exercise sound ethical judgment, Complainant should be removed from
her management position.

In March 2010, Complainant’s first-level manager (M1) and M2 met with Complainant and
discussed Complainant possibly stepping down from her supervisory position. In addition,
management discussed potentially placing Complainant on a performance improvement plan
(PIP). Complainant ultimately decided not to step down.

In April 2010, M2 conducted a second investigation into TIGTA complaints from
Complainant’s subordinates. The employees complained that Complainant used unfair
management practices, used intimidation tactics, may have committed EEO violations against
employees, and refused to provide training on Agency systems. One employee claimed that
she suffered an anxiety episode and requested sick leave after an incident with Complainant.
M2 interviewed the employees and Complainant and determined that Complainant made
several false and misleading statements. M2 concluded that many of the allegations were
unsubstantiated, but found that Complainant’s practices were not consistent among all
employees in the group. In addition, M2 criticized Complainant for how she handled the
incident with the employee who suffered an anxiety episode. M2 concluded that Complainant
should be disciplined for providing false and misleading statements and for the two
substantiated complaints.

In May 2010, Complainant received her mid-year assessment. In it, M1 informed
Complainant that she was not performing at the same level as her last rating. Among her
performance deficiencies, M1 noted that Complainant’s case analysis reviews and customer
service needed improvement and she had not proactively participated in the overall
effectiveness of the workgroup.

Additionally, in May 2010, Complainant denied a leave without pay (LWOP) request from one
of her direct reports who had been diagnosed with bronchitis. The Chief Union Steward
contacted M1 about the incident. Complainant claimed that she investigated the request and
made an intelligent decision. M1 wrote Complainant an email recapping their conversation
about the matter stating that Complainant knew the employee was sick, had a doctor’s note, but
denied the request because Complainant told M1 that she believed M1 would be mad at her
after she could not reach M1. M1 questioned Complainant’s leadership and noted the previous
issues that Complainant needed to improve.

In June 2010, M2 offered Complainant alternative discipline in lieu of a letter of reprimand for
conduct unbecoming of a manager. Complainant declined alternative discipline and, on
October 13, 2010, Complainant received a letter of reprimand for conduct unbecoming a
manager based on the findings of the two investigations into her subordinates’ complaints.

In November 2010, Complainant received a “Not Met” summary evaluation on her annual
performance appraisal. S1 noted in the appraisal that Complainant had failed in the leadership
of her group, did not make critical improvements to her operation that had been repeatedly
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outlined to her, and her lack of management and leadership were a direct reflection of why the
Birmingham group was struggling and not moving forward.

On August 31, 2010, (and amended on November 4 and 10, 2010), Complainant filed a formal
complaint alleging that the Agency subjected her to a hostile work environment on the bases of
national origin (Lebanese), age (52), and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, management asked her to voluntarily step
down from her Supervisory Revenue Officer position or face demotion or termination;
management criticized her handling of subordinates and accused her of poor leadership skills;
she received an inaccurate mid-year and annual performance appraisal; and she received a
reprimand with no conduct violations in it.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ granted the
Agency's motion for summary judgment and issued a decision on September 23, 2011.

In his decision, the AJ determined that the basis of Complainant’s hostile work environment
claim appeared to be that she was constantly criticized by her supervisors. The AJ found that
the alleged incidents were not sufficiently severe or pervasive to establish a hostile work
environment. In addition, the AJ concluded that there was no evidence that any of the alleged
incidents were based on Complainant’s protected classes. Complainant had presented no
evidence that the Agency’s reasons for its actions were pretextual. As a result, the AJ found
that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged.1

The Agency subsequently issued a final order adopting the AJ’s
decision. The instant appeal followed.
CONTENTIONS ON APPEAL

On appeal, Complainant contends that she has provided sufficient evidence of harassment and
that the Agency’s reasons for its actions are pretextual. Complainant argues that
management’s explanations for asking her to step down are not credible. Further,
Complainant contends that she was justified in her treatment of her subordinates. In addition,
Complainant alleges that she was not given copies of the investigation into her subordinates’
complaints and that she was given no specific reason for the discipline she received.
Accordingly, Complainant requests that the Commission reverse the final order.

1 The AJ dismissed three additional incidents as untimely brought to the attention of an EEO
counselor. On appeal, Complainant only raises arguments regarding one of the dismissed
claims (her allegation that management asked her to step down). As a result, the Commission
exercises its discretion to address only those issues raised on appeal.
0120120405

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ANALYSIS AND FINDINGS

The AJ’s Issuance of Summary Judgment

The Commission's regulations allow an AJ to grant summary judgment 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.

Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant’s favor, as explained below.

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

Here, Complainant alleged numerous incidents of what she believed to be discriminatory and
retaliatory harassment, including management constantly criticized her leadership skills; she
was issued mid-year and annual appraisals she believed were inaccurate; she was twice
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disciplined; and she was allegedly asked to step down from her supervisory position.
Construing the evidence in the light most favorable to Complainant, the Commission concurs
with the AJ that Complainant has not established that she was subjected to a hostile work
environment.

Even assuming that all of the alleged incidents occurred as Complainant alleged, the
Commission finds that Complainant failed to show that any of these incidents were motivated
by discriminatory or retaliatory animus. More specifically, the record reveals in March 2010,
management met with Complainant regarding the TIGTA allegations against her and her lack
of leadership. ROI, at 194. M1 and M2 gave Complainant the opportunity to think about
whether she wanted to remain in her supervisory position or move down into a Revenue
Officer position. Id. Complainant declined stepping down. Management informed her if her
performance did not improve, she could be placed on a performance improvement plan (PIP).
Id.

Regarding her mid-year and annual appraisals, M1 affirmed that Complainant’s mid-year
assessment was based on issues raised by employees and Complainant’s program delivery
deficiencies. ROI, at 198. Further, M1 maintained that she provided Complainant constant
feedback and outlined what she needed to do to be successful, but Complainant failed to
improve. Id. at 198-99. M1 stated that Complainant would tell her that things were getting
better, but she could not provide any specifics. Id. at 199. In Complainant’s annual
performance appraisal, M1 listed Complainant’s numerous performance deficiencies including
her failure to make meaningful progress in leading her group, her program’s overall inability
to meet Agency goals and objectives, and numerous complaints from employees about
Complainant’s lack of technical expertise. Id. at 992. As a result, M1 rated Complainant as
“Not Met.”

With respect to M1’s comments about Complainant’s leadership, M1 informed Complainant
that her actions in denying the LWOP request of a sick subordinate who had a doctor’s note
did not demonstrate those of a seasoned manager. ROI, at 200-01. Another incident occurred
when Complainant prepared a mid-year assessment for another subordinate. M1 had advised
Complainant about ensuring she could support the language inserted in the assessment. Id. at
201. The employee later approached M1 wanting the language changed. The employee told
M1 that Complainant told her that M1 would not allow Complainant to change the assessment.
Id. M1 stated that as a seasoned manager, Complainant should not have told the employee that
and should have taken ownership of the information provided to the employee. Id.

Regarding discipline, in June 2010, M1 offered Complainant alternative discipline in lieu of a
letter of reprimand for conduct unbecoming of a manager based on the findings of two
investigations into her subordinates’ TIGTA complaints. ROI, at 472. Complainant declined
and, as a result, M2 issued Complainant a letter of reprimand for conduct unbecoming a
manager. Id. at 561.

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Construing the evidence in the light most favorable to Complainant, the Commission finds that
she has not shown that any of the Agency's actions were based on discriminatory or retaliatory
animus. Further, to the extent that Complainant is alleging disparate treatment with respect to
her claims, the Commission finds that she has not shown that the Agency's reasons for its
actions were a pretext for discrimination or reprisal. As a result, the Commission finds no
basis to disturb the AJ's summary judgment decision finding that Complainant was not
subjected to discrimination, reprisal, or a hostile work environment as alleged

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 Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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 (Nov. 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).
0120120405

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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

May 29, 2013
Date