0120152486
03-24-2017
Ouida L.,1 Complainant, v. Steven T. Mnuchin, 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
Ouida L.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120152486
Hearing No. 470-2014-00059X
Agency No. IRS-12-0720-F
DECISION
On July 13, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 10, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Examining Technician at the Agency's Internal Revenue Service facility in Covington, Kentucky.
On November 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) when she was subjected to a hostile work environment. In support of her claim, Complainant alleged that the following events occurred:
1. On or about July 23, 2012, the supervisor (Supervisor) and the manager (Manager 1) issued to Complainant a letter of admonishment;
2. On an on-going basis, management did not advise her of promotion opportunities; and
3. On or about July 25, 2012, the Manager 1 discussed with another employee an incident of Complainant's alleged misconduct related to the issuance of the July 23, 2012, letter of admonishment.
On February 26, 2013, Complainant moved to the day shift and expressed interest to moving to a new unit under another manager (Manager 2). Subsequently, Complainant alleged that she was subjected to a hostile work environment in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of her claim of unlawful retaliatory harassment, Complainant asserted that the following events occurred:
4. On an unspecified date, management spoke to the Manager 2 and gave him a negative impression of Complainant, who was transferring to his team;
5. On or about February 26, 2013, management spoke to Complainant in a hostile manner;
6. On or about February 26, 2013, in a meeting with his team, Manager 2 told his team members that Complainant is a troublemaker and that they should not speak to her;
7. On a daily basis beginning February 26, 2013 and continuing to the present management has been watching everything that Complainant does;
8. Beginning in February 2013 and continuing to the present, pursuant to the instructions of management, managers assigned Complainant the most difficult work;
9. Beginning in February 2013 and continuing to the present, management and Manager 2 ignored Complainant's numerous requests for detail opportunities, mentors, job-shadowing, and promotional opportunities, and has refused to allow Complainant any training opportunities;
10. After the filing of her complaint, management stopped all communication with Complainant and responded to emails to address workplace concerns by saying "Since you didn't accept the agreement terms in the mediation process then refer any questions or concerns to the EEO specialist;" and
11. Beginning in February 2013 and continuing to the present, management has refused Complainant training opportunities.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 12-13, 2014, and issued a decision on May 5, 2015.
Following the AJ's findings of fact, the AJ made her finding of credibility. The AJ found that Complainant was largely not credible as a witness. The AJ made her finding based on Complainant's demeanor, conduct, inconsistencies of statements, indicia of fabricating answers in her manner of speech, and credible evidence with the record that contradicted Complainant's testimony. The AJ then recounted events that occurred during the hearing when Complainant sought to have Agency exhibits excluded because she alleged she had never received the items. However, when the AJ questioned her about the documents, Complainant conceded that she the documents were attached to the Agency's motion for summary judgment which she had received. Even when she was questioned under oath, the AJ noted that Complainant insisted that she had not seen the Agency's exhibits and even asserted that the Agency had "just put that together" or "changed it afterward." Complainant brought the documents to the second day of the hearing and the AJ noted that she failed to apologized for her error and unfounded accusations. The AJ also indicated that Complainant was not credible in her testimony regarding a confrontation with her co-worker which resulted in the admonishment raised in claim (1). The AJ found that Complainant hurt her own credibility with respect to the actions others took towards her and found that Complainant treated others with disrespectful behavior and speech during the hearing. The AJ also held that Complainant's responses to the AJ were dismissive and would act in a distracting manner while the AJ was speaking. Furthermore, the AJ indicated that Complainant hurt her credibility with statements that were not based on personal knowledge and her failure to provide specific detail. The AJ noted that Complainant asserted that Manager 1 stopped communicating with her after she was offered mediation. However, the record indicated that Manager 1 did communicate with her after the alleged claim. Therefore, the AJ concluded that Complainant did not establish her credibility as a witness.
The AJ then reviewed the other witnesses. She found that Complainant's witnesses were for the most part credible but failed to provide material or relevant information. The AJ noted that one of Complainant's witnesses was not credible in that her demeanor, conduct, manner of speech was not credible. The AJ noted that this witness seemed to have issues with Manager 2 which provided motive to exaggerate or fabricate answers. As for the Agency witnesses, the AJ found Manger 2 to be credible.
The AJ then turned to Complainant's claim of disparate treatment with respect to claim (1). The Letter of Admonishment was issued to Complainant based on her unacceptable behavior in causing disruption in the work area. The AJ found that, assuming Complainant could establish a prima facie case of race-based discrimination, she has not provided credible evidence to establish that the Agency's reasons were pretext for discrimination. In claim (2), Complainant asserted that she was not advised of promotional opportunities. Complainant claimed that Supervisor 1 did not provide her with opportunities. The AJ held that the record did not support Complainant's claim noting that Supervisor 1 forwarded emails sharing opportunities and detail opportunities to all the employees, including Complainant. Complainant's witness asserted that people who were seen as part of the "smoker's clique" were given more information, which was not based on race as alleged by Complainant. Therefore, the AJ concluded that Complainant did not establish that she was denied opportunities as alleged. Finally, the AJ turned to claim (3) in which Complainant claimed that Supervisor 1 spoke with a co-worker about the admonishment. The AJ questioned whether Complainant overhead the conversation because at the time of the alleged conversation, Complainant was on furlough. The AJ then reviewed claims (1) through (3) and determined that Complainant failed to show that the alleged harassment occurred because of her race. As such, the AJ concluded that Complainant did not establish that she was subjected to a hostile work environment based on race.
The AJ reviewed Complainant's claim of retaliatory harassment. The AJ held that Complainant failed to establish that the alleged claims occurred as Complainant asserted. The AJ noted that Manger 2 was informed by Supervisor 1 of issues with Complainant's conduct and attitude issues for the purposes of seeking guidance on how Supervisor 1 should handle the situation, not for retaliatory purposes. Manager 2 also testified that when Supervisor 1 brought Complainant's personnel file over after she was transferred. It was a few days after Complainant began in the new unit, Manager 2 was informed that Complainant had an EEO case pending regarding Manager 1's actions. The AJ found that the information was provided as part of the transfer of an individual between managers and nothing more. As for the allegations of Manger 2's interactions in claims (5), (6), and (7), he testified that he wanted to make clear to Complainant that he was not Manager 1 and that he wanted to set a tone and expectations for Complainant in her new unit. He denied watching "everything that Complainant" did, but he did observe her because of her error rate. The AJ also noted that management communicated with Complainant despite her claim in claim (10). As to claim (8), Complainant argued that she was given the most difficult work. The Lead distributed work amongst the team members and the AJ found that Complainant was given a varied of different forms to work and adjustments were made based on difficulty. As such, the AJ did not find that Complainant was given the "most difficult" assignments as she claimed. In claims (9) and (10), Complainant indicated that her requests for training and other opportunities for development were denied. The AJ found that the record did not support Complainant's assertions noting that Complainant was provided with training and offered detail opportunities by Manager 2. In conclusion, the AJ found that, based on the evidence in the record as well as the evidence presented at the hearing, Complainant failed to establish that the alleged retaliatory harassment occurred as she alleged or that it was based on her prior EEO activity.
Therefore, the AJ held that Complainant failed to show that the Agency's actions constituted a violation of Title VII. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. On appeal, Complainant challenged the AJ's credibility determinations. Complainant argued that there were material facts in dispute and that she demonstrated that the Agency's reasons for denying promotional opportunities were pretext for discrimination. The Agency asked that the Commission affirm its decision adopting the AJ's decision finding no discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-17 (Aug. 5, 2015). Accordingly, the AJ's findings of credibility and fact findings are accorded due deference.
It is well-settled that harassment based on an individual's race and/or prior EEO activity 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 class and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in that class and her prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (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). Upon review of the record, we find that the record supports the AJ's decision finding that Complainant failed to show that the alleged harassment occurred as she suggested or that the claims alleged occurred because of her race and/or prior EEO activity. As such, we conclude that the AJ correctly concluded that Complainant has not shown that she was subjected to race-based or retaliatory harassment in violation of Title VII.
We note that Complainant asserted that she was subjected to disparate treatment with respect to claim (1) in which she asserted that she was issued an admonishment letter. A claim of disparate treatment based on indirect evidence 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 or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the AJ noted that the Agency provided legitimate, nondiscriminatory reason for issuing the disciplinary action. Further the AJ held that Complainant failed to provide credible evidence of proof of pretext for the Agency's reason. We find that the record supports the AJ's findings and conclusion that Complainant failed to show that she was subjected to unlawful discrimination with respect to claim (1).
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 action adopting the AJ's decision following a hearing finding no discrimination.
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
March 24, 2017
__________________
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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