[Redacted], Leonardo M., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022002694 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leonardo M.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2022002694 Hearing No. 490-2019-00022X Agency No. IRS-18-0351-F DECISION On April 17, 2022, 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 March 17, 2022, final order concerning his 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 GS-0962-07 Collection Representative in the Agency’s Small Business/Self-Employed Division in Franklin, Tennessee. On May 15, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American and Native American) and sex (male) when: 1. On November 7, 2017, his manager (Manager-1) spoke to him unprofessionally, as though he were a child, when he asked her a technical question; 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. 2022002694 2 2. In December 2017, a coworker (Coworker-1) called him a “boy” and later said she was old enough to be his mother; 3. On February 1, 2018, a manager on another team spoke to him in a condescending manner; 4. On February 28, 2018, Manager-1 scolded him for asking a question regarding when he should take his break; 5. On March 2, 2018, Manager-1 threatened to write him up after he asked a coworker a technical question when Manager-1 and the lead were unavailable; 6. On March 13, 2018, Manager-1 sent hum an email regarding talking on his personal phone while working overtime, even though the call was about an emergency; and 7. On March 28, 2018, Manager-1 told him he was failing three of the five Critical Job Elements. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. On May 9, 2019, Complainant filed a response to the Agency’s motion for summary judgment, in which he argued that he had not received the December 20, 2018, Acknowledgment and Order until April 16, 2019, and therefore had been deprived of the opportunity to request discovery because he had missed the deadline. On September 20, 2021, Complainant filed a motion to extend discovery by two months so he could serve the Agency with attached discovery requests. The AJ denied Complainant’s motion to extend discovery. The AJ noted that the Acknowledgment and Order was emailed to Complainant’s email address of record and had not bounced back and that both the Agency’s discovery requests and an email from the Agency’s representative to Complainant specifically referenced the Acknowledgment and Order. Moreover, the AJ found that, despite receiving the Acknowledgment and Order on April 17, 2019, Complainant made no efforts to obtain leave to serve discovery until after a September 15, 2021, status conference, during which the AJ referenced the Agency’s motion for summary judgment. The AJ also observed that Complainant’s proposed discovery requests appeared to be very generic and determined that, to the extent that the information sought was discoverable, the information was already in the report of investigation or the Agency’s motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ determined that there was no evidence connecting the majority of the instances of alleged harassment to Complainant’s race and/or sex. Concerning Coworker-1 allegedly addressing Complainant as “boy,” as alleged in allegation (2), the AJ found that, after Complainant reported the incident to Manager-1, Manager-1 immediately instructed Coworker-1 not to use that language again. The behavior in question did not happen again, and the AJ concluded that Manager-1 appropriately addressed Complainant’s report that he had been subjected to racially charged language. 2022002694 3 The AJ found that the other statement in allegation (2), Coworker-1 allegedly stating that she was “old enough to be [Complainant’s] mother” was not connected to Complainant’s race and/or sex. The AJ noted that, for allegation (7), although Complainant objected to being called into a “surprise” meeting with Manager-1 and his second-line supervisor to inform him that he was failing some of his performance standards, that Complainant did not claim that he was not failing part of performance standards, and the AJ determined that Complainant failed to identify any evidence of discriminatory animus related to this claim. The AJ concluded that Complainant failed to establish a genuine issue of material fact and that he was not subjected to discrimination as alleged. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that a hearing is warranted. Complainant argues that he was pro se and at a disadvantage when he was denied discovery, According to Complainant, he was subjected to harassment that was both severe and pervasive. Complainant alleges that he was subjected to a racial slur when Coworker-1, who is white, called him “boy.” Complainant also asserts that there was a culture of misandry2 in the workplace. In response to Complainant’s appeal, the Agency requests that its final order should be affirmed. ANALYSIS AND FINDINGS 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). 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 rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). As a preliminary matter, we address Complainant’s contention that the AJ erred in denying his motion to extend discovery. Administrative Judges have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). 2 The Merriam-Webster dictionary defines misandry as “a hatred of men.” https://www.merriam- webster.com/dictionary/misandry. 2022002694 4 Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused their discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, we find that it was not an abuse of discretion for the AJ to deny Complainant’s motion to extend discovery. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 the 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). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2022002694 5 The Agency’s legitimate, nondiscriminatory reason for informing Complainant on March 28, 2018, that he was failing three aspects of the five critical job elements was to improve his performance. In a performance counseling memorandum, Manager-1 specifically stated that Complainant still needed constant assistance with his calls, decision making, research, and analysis, and that he had issues with time utilization, and the memorandum also described the resources she would provide to Complainant to improve his performance. Complainant has not offered anything other than speculation that this was based on his race and/or sex, which is insufficient to establish a genuine issue of material fact or to establish pretext for discrimination. We agree with the AJ that, with one exception, there is no evidence linking the instances of alleged harassment to Complainant’s race and/or sex. Assuming for the purposes of this decision that Coworker-1’s “boy” comment was directed at Complainant because of his race and was sufficiently severe to constitute a hostile work environment, we find that there is no basis for imputing liability to the Agency. In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Here, after Complainant reported that Coworker-1 referred to him as “boy,” Manager-1 counseled Coworker-1 about the use of the term, and there is no evidence that Coworker-1 subjected Complainant to further harassment. We therefore find that the Agency took immediate and appropriate corrective action. Complainant has not established that he was subjected to unlawful harassment as alleged. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2022002694 6 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022002694 7 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 6, 2023 Date