0120142187
10-19-2016
Geraldine G.,1 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
Geraldine G.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120142187
Hearing No. 480-2011-00537X
Agency No. IRS-11-0108-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's April 18, 2014 final order concerning an equal employment opportunity (EEO) complaint claiming 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 as a Contract Service Representative at the Agency's Wage and Investment Service Center in Fresno, California.
On December 22, 2010, Complainant filed a formal EEO complaint alleging that she had been subjected to ongoing harassment sufficient to create a hostile work environment on the basis of her sex (female). In support of her claim, Complainant made the following allegations:
a. on December 7, 2010, her manager held her against her will in a meeting and physically barred her exit;
b. on November 23, 2010, her manager yelled at her in a unit meeting;
c. on November 3, 2010, her manager divulged her private medical information to another employee;
d. on or about October 21, 2010, her manager gave her a lowered performance review for the period of January 1, 2010 through September 31, 2010; and
e. since January 2010, her manager has monitored her lunch breaks and belittles her with comments such as "you're just like my wife - you can't make up your mind?"
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On April 1, 2014, the AJ issued a decision by summary judgment, finding no discrimination.
The AJ found that the record developed during the investigation established the following undisputed facts:
Complainant had the same first-level manager (male) between January and December 2010. He ceased to be her supervisor as of December 8, 2010.
Regarding allegation a, Complainant stated that on December 7, 2010, during her third quarter performance counseling session with the manager, she pointed out multiple errors in the review, which resulted in the manager becoming defensive and loud. Complainant told the manager that the meeting was over and started to leave with the counseling papers that he had given to her. Complainant acknowledged that the manager directed her not to leave and demanded she return the counseling papers to him.
Complainant said she told the manager that she wanted to make copies of the counseling papers, but that he manager would not allow her to leave. Complainant stated that when she proceeded to walk the opposite way to the other door from around the table, the manager walked toward the other door, too. At that point, Complainant called for a named employee to open the door and she exited the conference room. Complainant perceived this interaction as the manager holding her against her will and believed he would not have taken the same action if Complainant was not a female.
The AJ determined that Complainant did not provide any evidence indicating that the manager would have treated a male employee more favorably in similar circumstances.
Regarding allegation b, Complainant acknowledged that she questioned the manager during the November 23, 2010 unit meeting which caused the manager to become defensive and raise his voice in front of everyone. The AJ determined that even accepting Complainant's allegation that the manager yelled at her was true, she provided no evidence to suggest that the manager yelling at her was related to her sex. The AJ determined that, instead that the yelling related to Complainant questioning the manager during the meeting.
Regarding allegation c, on November 3, 2010, Complainant went to the nurse's office after informing her manager that she was not feeling good. The nurse checked Complainant's blood pressure and advised her to go to the doctor's office. Instead, Complainant went to the union office and informed the representative that she had an upsetting dispute with her manager, had her blood pressure checked and the nurse told her to go to see a doctor. Complainant also asked the representative to call the manager to let him know she was at the union office. The union representative stated that the manager asked him why Complainant was in the union office if she had high blood pressure and a heart condition, and the nurse suggested that Complainant see a doctor.
The AJ determined there was no evidence in the record indicating that the manager revealed Complainant's hypertension and heart issues to the union representative because of Complainant's sex. The AJ determined that while the manager should not have revealed the confidential information to the union representative, he did so out of concern for Complainant's health.
Regarding allegation d, Complainant filed a grievance on or about June 1, 2011 concerning her 2010 performance appraisal. As a result of the grievance, Complainant's performance appraisal was raised. In its motion for a decision without a hearing, the Agency requested that claim d be dismissed pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits claims of discrimination. The AJ noted, however, Complainant filed the instant formal complaint before filing her grievance.
The AJ noted that in her response to the Agency's discovery requests, Complainant stated "for the record, we are not trying to contest the evaluation in this EEO complaint because it was resolved in the grievance process. It was merely cited in this complaint as an example of many things I assert as a basis for discrimination and retaliation by management [emphasis in its original]." Therefore, the AJ determined that Complainant has withdrawn claim d.
Regarding allegation e, the AJ found that Complainant did not provide any evidence indicating that the manager's attempts to locate her twice during her lunch break had any relation to her sex. The AJ further noted that the Supervisor, Information Technology, also Complainant's second level supervisor stated that Complainant admitted to her and the manager that during the relevant period something was going on which caused her to report to work late following her lunch breaks.
Further, Complainant alleged that on November 22, 2010, the manager told her that she was just like his wife, not being able to make up her mind. Complainant felt that the manager made a sexist generalization about women in general. The AJ noted that the manager stated at that time he was assisting Complainant with her leave requests, just as he had with his wife earlier that morning and that Complainant was having trouble making up her mind as to which dates were more important. The AJ noted that the manager's remark was related to specific incidents that had happened the same day with both Complainant and the manager's wife, and that it "was not a general disparagement of the decision-making abilities of women."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of sex discrimination and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. On appeal, Complainant here has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
To establish a claim of discriminatory 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 intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the undisputed facts developed during the investigation fully support the AJ's determination that Complainant failed to prove that her sex played any role whatsoever in the events she offered in support of her hostile work environment claim. Without meeting this critical element of her burden of proof, Complainant's discrimination claim fails.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 19, 2016
__________________
Date
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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