Adriene B.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120170449 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adriene B.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120170449 Hearing No. 541-2015-00066X Agency No. IRS-14-0135-F DECISION On November 4, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 7, 2016 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons which follow, the Commission AFFIRMS the Agency’s decision. ISSUE PRESENTED Has Complainant proven by a preponderance of the evidence that the Agency subjected her to an unlawfully hostile work environment? 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. 0120170449 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a seasonal Individual Taxpayer Advisory Specialist, GS-7, in the Agency’s Wage and Investment Division in Denver, Colorado. On April 25, 2014, Complainant filed a discrimination complaint alleging that from December 2010 through March 24, 2014, the Agency subjected her to harassment on the bases of race (mixed), sex (female), color (mixed), disability (intellectual and mental disabilities, legally blind in left eye, rotator cuff),2 and reprisal for prior protected activity when a co-worker or co-workers struck her hand and upper arm; a co-worker yelled at her while pointing a finger in her face; and a co-worker said she did not want to “babysit” Complainant. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (IF) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. In an Order Revoking Hearing Request, dated August 24, 2016, the AJ denied the instant hearing request and remanded this matter to the Agency for issuance of a decision. The Agency subsequently issued its decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant submitted a statement in support of her appeal which notes her disagreement with the Agency decision that it did not discriminate against her.3 The Agency maintains its position addressed in its final decision and urges that it be affirmed. ANALYSIS AND FINDINGS 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, (EEOC MD-110) at Chapter 9, § VI.A. (Aug. 5, 2015). 2 In her affidavit, Complainant also identified other medical conditions in the record, including traumatic brain injury, post-traumatic stress disorder (PTSD), fibromyalgia, temporary depression, anxiety disorder, social phobias, right hand tremors, and speech impediments. 3 The statement, Response to Final Agency Decision and Reasonable Accommodation, lacks clarity, and in which Complainant is claiming that the Agency generally engaged in conspiratorial actions against her for allegedly unlawful reasons. The Commission takes notice that Complainant’s appeal in EEOC Appeal No. 0120170618 (Mar. 29, 2018), addressed numerous claims of the alleged failure of the Agency to accommodate her. 0120170449 3 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 we 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. Complainant’s affidavit is contained in the record. She explained that she was hired as a Schedule A employee under a program designed to promote the hiring of individuals with disabilities. She stated that from 2010 through 2013, she reported abuses to the Social Security Administration “Ticket to Work” rehabilitation program, and that in 2014, she made the Treasury Inspector General for Tax Administration (TIGTA) aware of “workplace spanking by an [Individual Taxpayer Advisory Specialist] and workplace striking with objects by [a Senior Individual Taxpayer Advisory Specialist].” (IF, Ex. A, p. 59). Complainant’s affidavit discloses that on an unspecified date, an Individual Taxpayer Advisory Specialist [ITAS] “stalked [her] from behind in a scary fashion ... and spanked [her] right-hand fingers” when she made what she described as an easily correctible error, and then he made “biased remarks” regarding her disabilities. Complainant also stated in her affidavit that in March 2014, she was using Zoom Text and earphones, which were part of her reasonable accommodation, to complete a mandatory briefing when the Senior Individual Taxpayer Advisory Specialist (STAS-1) stalked her from behind and repeatedly struck her with a stack of IRS security envelopes and issued Complainant a directive. (IF, Ex. A, p. 61). Complainant also stated that the STAS-2 has rushed her from behind with “hostile outbursts,” leaned her face, breasts and fingers into the face of Complainant, pounded on office furniture, and made discriminatory remarks regarding her disabilities, including saying that she did not have time to babysit her. (IF, Ex. A, p. 62-63). She also claimed that the STAS-2 threatened and insulted her and asked her not to use her name regarding Complainant’s misconduct. Also contained in the record is the affidavit of the Field Assistance Group Manager (FAGM). He stated that Complainant made several complaints to him about how coworkers committed some “outrageous act” to make her workplace a hostile place to work. Her complaints, according to the FAGM, usually came on a date after the incident had allegedly occurred. He stated that Complainant reported on several occasions that the STAS-2 would sneak up behind her, start screaming at her, and pounding on her cubicle in front of taxpayers. The FAGM noted that he witnessed Complainant get into a confrontation with the STAS-2 one time when Complainant told the STAS-2 that she was the “big time lead” who should know the answers. The STAS-2 told Complainant that she did want to babysit her. The FAGM also noted that Complainant provoked the confrontation. 0120170449 4 The FAGM stated that he could not confirm any other incident that Complainant alleged had occurred. His affidavit discloses that he attempted to confirm Complainant’s claims by talking to taxpayers and employees who would have been in a position to overhear. Regarding her claim that STAS-2 had pounded on her furniture, the FAGM stated that when the STAS-2 tapped on Complainant’s cubicle, it was to get her attention. He explained that the volume on Complainant’s computer was so high that the employees around her could not conduct business. Regarding the claim that STAS-1 had struck her hand and upper arm, the FAGM stated that he talked to the STAS-1 and she denied that the incident had occurred. STAS-1 had no idea about what Complainant was talking. Regarding the claim that a coworker yelled at her while pointing a finger in her face, the FAGM noted that he talked to several coworkers who worked in close proximity to Complainant’s cubicle. No one overheard such activity. The FAGM also stated that Complainant’s claims of harassment always involved four individuals, all Black, and no other employees reported that these individuals had harassed them. He noted that Complainant stated that she had a social phobia and stated that the “triggers” for this phobia were Black people. The alleged harassers all denied that they had harassed Complainant. In his affidavit, the ITAS, whom Complainant accused of striking her on her hand and upper arm, denied the claim. The second alleged harasser, STAS-1, whom Complainant accused of repeatedly striking her with a stack of envelopes, denied the claim in her affidavit. She stated that Complainant had concocted the incident. STAS-1 recounted that employees would go out of their way to assist Complainant. STAS-1 could not believe that Complainant would make accusations against employees who had tried to help her the most. STAS-1 recounted in her affidavit that Complainant would think someone was being mean to her if she were handed a pen the wrong way. If Complainant asked her a question and STAS-1 answered it, Complainant would complain about the choice of words in response or that STAS-1 did not answer her quickly enough. She stated that she kept her relationship with Complainant strictly professional, with small talk on a few occasions. STAS-1 limited her conversations with Complainant because of misinterpretations and “word twisting” on Complainant’s part. She also explained that employees were afraid to talk to Complainant for fear of being accused of something that was untrue. According to STAS-1, the FAGM had placed Complainant on her team to see if she could work with her. The STAS-1 also stated that she had never had any other complaints made against her. She noted that Complainant only had issues with Blacks. The STAS-1 witnessed an incident when Complainant accused a Black customer of yelling at her. The customer had only asked Complainant to speak up because he could not hear her very well because Complainant did not look him in the face when he spoke to her. Complainant then asked the STAS-1 to take care of the customer. The third alleged harasser, the STAS-2, stated that as a senior employee, she was assigned to provide on-the-job training to new and other employees. She too denied harassing Complainant. She did not deny that she had stated that she would not babysit Complainant. 0120170449 5 The STAS-2 stated that Complainant had a “bad habit” of complaining about every assignment that she was given and could not complete. Any feedback given to her was seen as harassment. The STAS-2 also stated that Complainant seemed “to have something against black employees” who worked in the group. The fourth alleged harasser, a secretary, also denied harassing Complainant. She recalled an event that occurred in May or June 2014, when Complainant came by the office to turn in her keys. One of the keys did not belong to the office. The secretary returned the key to Complainant by office mail with a sticky note saying that the key was not an office key. Complainant called the office the next day and reported that the secretary had called her a “ho” in the note. The secretary stated that no other employee had claimed that she harassed them. Claim of Harassment As a preliminary matter, we find that the complaint was appropriately investigated in a manner consistent with EEOC MD-110, Chap. 6. There exists an appropriate factual record that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Complainant alleged that she was subjected to an unlawfully hostile work environment. Such a claim is examined under the guidelines set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) in which the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See also, Enforcement Guidance on Harris v. Forklift Systems, Inc. EEOC Notice No. 915.002 (March 8, 1994). To establish a claim of harassment, Complainant must show that: 1) she belongs to a statutorily protected class; 2) she was subjected to unwelcome verbal or physical conduct involving the protected class; 3) the harassment complained of was based on a 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. Upon review, the Commission finds that the preponderant evidence does not support a finding that the conduct, if it occurred as alleged, was motivated by discriminatory animus. Even assuming that the incidents occurred as described by Complainant, and considering the record as whole, the claims do not rise to the level of a hostile work environment. The Commission has consistently held that the civil rights statutes are not meant to be civility codes, ridding the workplace of all petty slights and annoyances. Burlington Northern & Santa Fe Rv. Co. v. White, 548 U.S. 53, 68 (2006). The discrimination statutes do not create a right to work in a pleasant environment, merely one that is free from discrimination. As a result, employees may experience unprofessional, inappropriate, and disrespectful treatment. However, so long as such treatment is not based on a prohibited reason, the discrimination statutes do not prohibit such actions which inevitably occur in the workplace. Discrimination statutes were enacted to protect against unlawful behavior which is based on a prohibited basis and which is so severe or pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive, altering the workplace and creating a hostile work environment. 0120170449 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that Complainant was not subjected to an unlawfully hostile work environment. 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. 0120170449 7 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation