0120121741
08-31-2012
Maria T. Patente, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Maria T. Patente,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120121741
Agency No. IRS-11-0393-F
DECISION
On March 12, 2012, Complainant filed an appeal from the Agency's February 8, 2012, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant (Caucasian, Italian-American) worked as a Revenue Agent at the Agency's Small Business/Examination Unit facility in Fairfax, Virginia. The record indicated that Complainant began working with the Agency on March 15, 2010, and served a probationary period. Complainant reported to the Group Manager (Caucasian, German-American). In June 2010, Complainant indicated to the Group Manager that the On-the-Job Instructor (Instructor) was picking on her. The Group Manager told Complainant and the Instructor to work it out. Complainant and the Group Manager got into a heated discussion about this situation. The Group Manager counseled Complainant on her behavior in the presence of the First-Line Supervisor (Supervisor, Caucasian, mixed European and Canadian). The Supervisor issued a memorandum to her Territory Manager (Manager) in July 2010, indicating that Complainant was very smart but noted concerns regarding Complainant's difficulty following directions and argumentative episodes.
Difficulties between Complainant and the Supervisor continued. In October 2010 and February 2011, Complainant believed that the Supervisor was assigning her an unreasonable, high priority workload including reassignments from an African-American coworker. Complainant believed that African-American employees were held to a different standard. In addition, she felt that the Supervisor enjoyed harassing her. On March 10, 2011, the Supervisor conducted a workload review with Complainant. Complainant asserted that the Supervisor invented reasons to disparage her. The exchange between Complainant and the Supervisor became very heated to the point employees could see that they were "speaking very loudly" with aggressive tones. The next day, on March 11, 2011, Complainant resigned from her position.
On May 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and national origin (Italian-American) when she was subjected to harassment. In support of her claim of harassment, she indicated that the following events occurred:
1. Management held her work to different work standards than other employees;
2. The Supervisor directed Complainant to "make up b.s." in order to get a deficient case through Technical Review.
3. The Supervisor told Complainant to "just quit" her job.
4. In February 2011, Management transferred deficient cases from another employee into Complainant's inventory. This resulted in a very high workload for Complainant.
5. On March 11, 2011, Complainant resigned in lieu of termination during her probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed.1 On appeal, Complainant asserted that the Agency failed to provide legitimate, nondiscriminatory reasons for its actions, namely providing Caucasian employees with different standards than non-Caucasian employees. Further, Complainant argued that the explanation provided by Management was that the work assigned to Caucasian employees was different from non-Caucasian employees is further evidence of discrimination. In addition, Complainant claimed that the Agency improperly accepted the Supervisor's testimony as credible. In addition, Complainant asserted that she established her claim of harassment. She noted that he was subjected to events because of her race and national origin as evidenced by the distinctions in treatment given to Caucasians and non-Caucasians. Complainant claimed that the treatment was sufficiently severe and that liability is established. In addition, Complainant challenged evidence presented by the Agency and argued that it should have been excluded. As such, Complainant requested that the Commission find in her favor and provide her with appropriate remedies.
The Agency requested that the Commission affirm its final decision. The Agency noted that Complainant's purported comparators were Tax Compliance Officers and not Revenue Agents, like Complainant. Instead, Complainant changed her title on appeal to be "examiner" so that the comparators are similarly situated to her. The Agency then argued that Management provided legitimate, nondiscriminatory reasons for its action which Complainant failed to show were pretext. Finally, the Agency contended that Complainant did not show that she was subjected to unlawful harassment which resulted in her constructive discharge as alleged.
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. (November 9, 1999) (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").
Harassment
It is well-settled that harassment based on an individual's race and/or national origin is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to her membership in those classes; (3) the harassment complained of was based on her race and/or national origin; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
For purposes of analysis, the Commission assumes that Complainant has established elements (1) and (2) of her prima facie case of harassment. As such, we turn to whether Complainant has shown that the events raised occurred based on Complainant's race and/or national origin.
In support of her claim of harassment, Complainant asserted that she was held to higher standards than those of non-Caucasian employees. The Supervisor averred that Complainant did not have comparators noting that Complainant was the only Revenue Agent at the GS-11 level. Other employees were Tax Compliance Officers and other Revenue Agents were at the GS-7 and 9 levels. Further, the Supervisor noted that she had prepared a checksheet as a tool for the Revenue Agents to use but the use of the sheet was not mandatory. As such, she asserted that, at the time, all of the Revenue Agents were Caucasian and they received the checksheet. As such, the Supervisor explained the difference and we do not find that Complainant has shown that the alleged action occurred because of her race and/or national origin.
As to Complainant's claim that the Supervisor told her to "make up b.s.," the Supervisor denied Complainant's claim. Further, the Supervisor noted that the work assigned to Complainant were supposed to be quick closures. However, Complainant re-did the work and made requests for unnecessary documents. The Supervisor also denied telling Complainant to "just quit." Without additional evidence, we cannot find that Complainant has supported her assertion that these events occurred as she alleged.
Complainant also asserted that Management reassigned work to her in February 2011. The Supervisor noted that the work was reassigned to Complainant and that the work was within Complainant's expected level for her position and grade. Further, co-workers averred that it was normal for the Supervisor to transfer cases. As such, we cannot find that Complainant was treated differently based on her race and/or national origin. Therefore, based on a review of the record, we determine that Complainant failed to establish her claim of harassment based on race and/or national origin.
Constructive Discharge
Complainant also asserted that, due to the working conditions, she was forced to resign in lieu of termination. In essence, she alleged that she was constructively discharged from her position. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in Complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against Complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant has failed to show that the conduct created an intolerable working condition. As such, we cannot find that Complainant has shown the she was constructively discharged from her Revenue Agent position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
August 31, 2012
__________________
Date
1 We note that Complainant alleged that the "ALJ" erred in finding no discrimination without a hearing. The record clearly shows that Complainant did not request a hearing before an EEOC Administrative Judge.
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0120121741
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121741