Doria D.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019001810 (E.E.O.C. Sep. 26, 2019)

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

Doria D.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 2019001810

Hearing No. 20-1900-1810

Agency No. IRS-16-0794-F

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 9, 2019 final
decision concerning an 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Correspondence
Examination Technician in Holtsville, New York.

On December 1, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and in reprisal for prior
protected EEO activity.

By letter dated December 13, 2016, the Agency accepted the formal complaint for investigation
and determined that it was comprised of the following claims:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Was Complainant harassed on the bases of race (African American) and in retaliation for prior
protected activity when:

1. Her manager (S1) required her to assist a colleague who was behind in her work on or
around August 11, 2016;

2. [S1] announced that she was performing a bin review of Complainant’s work in a
way that Complainant’s colleagues were able to hear [S1] perform the bin review on
or around October 7, 2016;

3. [S1] subjected [Complainant] to a Cybersecurity check on or around October 18,
2016;

4. [S1] changed [Complainant’s] time in SETR ( Single Entry Time Reporting System).

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. By Order of Dismissal dated November 29, 2018, an
EEOC AJ dismissed Complainant’s hearing request and ordered the Agency to issue a final
decision.

On January 9, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b),
finding no discrimination. Under a disparate treatment analysis, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim
(1), the Agency found that management asked Complainant to switch her week for screening
cases with another employee who had been absent and who had a large, aged caseload. The
Agency noted that screening cases was a duty which was rotated between members of the group.
Regarding claim (2), S1 conducting a bin review, the Agency in its final decision found that
management conducted bin reviews for each employee on a quarterly basis. Regarding claim
(3), a cybersecurity check being run on Complainant, the Agency’s final decision found that this
check was done for the sole purpose of determining whether Complainant was in the office on a
specified date. Regarding claim (4), S1 changing her time in the SETR, the Agency found that
management entered her time because it was not entered completely in the system and that
management entered Complainant’s time exactly as it was set forth on a document provided by
Complainant.

The Agency further found that Complainant failed to establish that management’s articulated
reasons for its actions were pretext for discrimination and/or retaliation.

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Regarding the overall harassment claim, the Agency found “in the absence of any finding of
discrimination on the individual allegations at issue, we find that Complainant cannot show that
she was subjected to unlawful harassment.” Final Agency Decision at 7.

The instant appeal followed. Complainant does not submit a statement or brief in support of her
appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

Disparate Treatment Analysis

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition
No. 03900056 (May 31, 1990).
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Assuming arguendo that Complainant established a prima facie case of discrimination and/or
retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim (1), Complainant being asked to assist a co-worker with screening cases, the
record contains an affidavit from S1. Therein, S1 asserts that it is her responsibility to reassign
work if necessary. Report of Investigation (ROI) at 215. S1 states that employees on the team
rotate screening cases each week. Id. at 196. S1 asserts that she did not choose Complainant
randomly but that she asked Complainant to switch with a co-worker because she was next on
the list. Id. S1 states that the co-worker had been out of the office for a few days and had many
aged cases. Finally, S1 states that in the past on a specified occasion, she removed Complainant
from screening and asked another employee to take her place because Complainant has aged
cases. Id.

Complainant failed to establish pretext. While Complainant may have disagreed with S1’s
decision and Complainant asserts that S1 did not ask her to screen cases but rather she was told,
this is insufficient to establish pretext for discrimination and/or retaliation. S1’s responsibilities,
as set forth above, including managing work priorities and assigning work.

Regarding claim (2), S1 conducting a bin review on Complainant, the Agency articulated a
legitimate, nondiscriminatory reason for its action. S1 asserts that bin reviews are performed
quarterly. Id. at 199. S1 asserts that she did not announce a specific bin review for Complainant
but that she reminds the team in team meetings that bins reviews will be due for the quarter. Id.
at 200. The record contains documentation that S1 conducted bin reviews for other team
members. Id. at 279-576.

Complainant failed to establish that S1’s reasons for her actions were pretext for discrimination
and/or retaliation with respect to claim (2).

Regarding claim (3), the Cybersecurity check, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. S1 asserts that she did not specifically request that a
cybersecurity check be performed on Complainant. Id. at 203. S1 states that Complainant could
not remember if she worked on September 12, 2016 and S1’s records indicated that Complainant
did not work. Id. at 205. S1, therefore, asserts that she inquired if Complainant accessed the
Integrated Data Retrieval System (IDRS), a system that Complainant uses to perform her work.
Id. at 203. S1 asserts that she received an email from Cybersecurity that Complainant did not
access the system on that date. ROI at 204.

Complainant failed to establish that S1’s actions were pretext for discrimination/and or
retaliation.

Regarding claim (4), S1 changing Complainant’s time in SETR, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. S1 asserts that she was trying to validate
payroll for the team and it came back that Complainant’s payroll was incomplete. Id. at 207.
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S1 asserts that she spoke with Complainant and that she stated that she had successfully input her
time and showed S1 a printout. Id. S1 asserts that she explained to Complainant that she would
need to reinput her time. Id. S1 states that Complainant told her she was not going to do it and
that S1 did it herself. S1 states that she input Complainant’s time exactly as listed on her
printout. Id.

Complainant failed to establish that S1’s actions were pretext for discrimination and/or
retaliation.

Harassment Analysis

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their 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). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998).

As set forth above, Complainant failed to establish that the Agency’s actions were based on her
race or prior protected activity. Thus, we find that Complainant did not meet the third prong
(that the conduct was based on a protected class) to establish a prima facie case of harassment.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 26, 2019
Date