0120142538
11-29-2016
Alejandrina L.,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
Alejandrina L.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120142538
Agency No. IRS130680F
DECISION
Complainant timely appealed the Agency's May 30, 2014, finding concerning her equal employment opportunity ("EEO") complaint alleging unlawful 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 the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Customer Service Representative (GS-08) for the Agency's Wage and Investment Division Austin Campus, in Dallas, Texas.
On November 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of religion (Christian) and age (64) when:
On August 7, 2013, following a group meeting, she was forced to participate in a group prayer led by her manager ("S1"), and afterward, S1 made statements indicating that Complainant "had a problem with prayer," which led to the inference by Complainant's coworkers that the meetings were canceled thereafter for several weeks because of her.2 Complainant requests monetary damages.
Complainant was reassigned to a new Customer Service Manager, who would be her first level supervisor ("S1"), in July 2013. S1's team was known to be "tight knit." About a year before, S1 began concluding her regularly scheduled mandatory group meetings by instructing her group to join hands or touch one another on the shoulder, and leading them in prayer. Initially a response to low morale over another employee's death, by the time Complainant joined S1's group, her new coworkers considered these prayers "standard practice." The prayers were overtly religious (Christian), using phrases such as "in Jesus' name" and "Father God," however they addressed generalized topics such as employee wellbeing or hope for a good work week. Everyone in S1's team participated in the prayers. Most approved of the practice, but several felt pressured to participate, even though on at least one occasion S1 stated that the prayer portion of the meeting was not mandatory, and that those who did not want to participate could leave the meeting early.
Complainant's first (and only) group meeting under S1 took place on August 7, 2013. She was unprepared for S1's closing prayer, and alleges that there was no opportunity to opt out of it. In addition, Complainant witnessed her friend and coworker ("C1"), ask S1 not to pray for her and attempt to decline participation in the prayer, only to have S1 grab her hand anyway. Usually C1 gladly participated, but that day she was angry with S1 for an incident the week before. S1 began the prayer by stating "Father God; In Jesus name help [C1] or be with [C1]." C1 was the only individual named in the prayer, and it was the first time S1 singled an employee out in this way. Complainant alleges that S1 violated her and C1's (Christian) religious belief that prayer was not to be used for spite or to publicly shame someone, which both she and C1 believed was S1's purpose for calling C1 out during the August 7, 2013 prayer.
Complainant informed her second level supervisor ("S2"), the Acting Operations Manager and Department Manager, that S1 "forced" her group to participate in prayer at the end of meetings. S2 was "floored" because this was the first he'd heard of S1 conducting any type of "prayer activity." S2 immediately instructed S1 to stop conducting prayer during work hours and in group meetings. S2 also notified his supervisor, the Department Manager ("S3"). Both S2 and S3 were concerned about Complainant's account of C1 being "singled out," so S2 met with C1, advised her of her EEO rights. C1 did not want or feel a need to pursue an EEO Complaint, but by her own request (citing unrelated "bullying" incidents by S1) S2 reassigned C1 out of S1's group. Complainant remained in S1's group, and initiated the instant complaint. Complainant alleges that after reporting the August 7, 2013 prayer to S2, S1 "bullied" her. Among other things, S1 allegedly commented to Complainant's coworkers that Complainant "has a problem with prayer" and insinuated that Complainant and C1 caused group meetings to be canceled.
Complainant did not participate in any additional group meetings under S1 after the August 7, 2013 meeting. S1 canceled several meetings immediately after August 7, 2013; then on September 18, 2013 she went on long term sick leave; and on November 30, 2013, she requested disability retirement, which S3 granted, although the final date of S1's employment is in dispute.
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). In accordance with Complainant's April 9, 2014 request, 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.
ANALYSIS AND FINDINGS
Although the Agency conducted an investigation on the merits of Complainant's claims it ultimately dismissed them on procedural grounds, finding her allegations failed to state a claim of disparate treatment or harassment on the bases of religion or age. On appeal, Complainant argues that the Agency failed to conduct an adequate investigation because it did not obtain a statement from S1, whose testimony was "crucial" to the decision. Based on this alleged error, Complainant asks this Commission to draw an adverse inference against S1, decide the instant complaint in her favor, and award her monetary compensatory damages.
Adequacy of the Investigation
EEO investigations are governed by 29 C.F.R. � 1614.108 and the instructions contained in the Commission's Management Directives ("EEO MD-110"). See EEO MD-110, Ch. 6 ("Development of Impartial and Appropriate Factual Records") (Aug. 5, 2015). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. See MD-110, 6-26; 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." 29 C.F.R. � 1614.108(b) While the agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, the complainant can also cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, � XI and Ch. 7, � I.
Our regulations dictate that during an EEO investigation, the complainant, the agency, and any employee of a Federal agency shall produce such documentary and testimonial evidence as the investigator deems necessary. See 29 C.F.R. � 1614.108(c)(1). In addition to the Commission's inherent authority to enforce its Part 1614 Regulations, 29 C.F.R. � 1614.108(c)(3) authorizes administrative judges and the Commission on appeal to take one of four specified actions, including issuing a decision fully in favor of the opposing party, where an agency or its employees fails without good cause shown to respond fully and in timely fashion to an investigator's requests. See 29 C.F.R. � 1614.108(c)(1); Elston v. Dep't of Transportation, EEOC Appeal No. 0720050019 (Oct. 18, 2005); EEO MD-110, 6-26. Our guidance further provides that this Commission on appeal may, in appropriate circumstances, draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information. See EEO MD-110 Ch. 6; 29 C.F.R. � 1614.108(c)(3)(i).
Complainant alleges that she informed the EEO investigator assigned to her complaint in writing of this alleged defect in the investigative file by providing her with email evidence allegedly indicating S1 was still an Agency employee during the investigation. After one unanswered information request to S1, Complainant alleges that the EEO investigator made no further efforts to obtain a statement from S1. We note that S1 went out on long term sick leave and then took disability retirement.
Upon review, we find that the Agency developed an impartial and appropriate factual record that is sufficient to allow us to draw conclusions as to whether discrimination and/or harassment based on Complainant's religion and age occurred. We acknowledge Complainant's assertion that S1, as the alleged responsible management official, was "the major party" referenced in her complaint. However, Complainant provides no indication as to what crucial new information she expects to retrieve were S1 to provide a statement. The record contains a total of 13 witness declarations address Complainant's specific allegations. These include detailed statements from S2 and S3 (who are also S1's supervisors) and 5 declarations by Complainant's coworkers who were present for the August 7, 2013 meeting, including C3. These statements, along with other documentation in the record constitute an impartial and appropriate factual record.
Disparate Treatment
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In complaints of disparate treatment, this Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See, e.g. Dow v. Dep't of the Treasury, EEOC Appeal No. 0119985855(Mar. 21, 2000) (Complainant's claim that he suffered discrimination as a result of alleged defamatory remarks and comments made by agency officials failed to state a claim demonstrated that he suffered a harm or loss to a term, condition, or privilege of employment) citing Backo v. United States Postal Serv., EEOC Request No. 05960227 (Jun. 10, 1996); Henry v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). In the instant case, Complaint has not established how S1's alleged comments, whether the prayer itself or the alleged insinuations about Complainant to her coworkers, resulted in a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Complainant fails to state a claim of disparate treatment.
Harassment
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a hostile work environment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995).
We find the alleged harassment, the prayer lead by S1 on August 7, 2013, constitutes an isolated incident unlikely to reoccur. S2 and S3 took immediate and appropriate action to ensure Complainant would not be subjected the alleged harassment again. Not only did both S2 and S3 instruct S1 to stop conducting prayer during work hours, the record indicates that Complainant was given the option of reassignment to another supervisor, which she declined. Complainant does not dispute that after informing S2 about the alleged harassment, the conduct ceased. Moreover, it appears Complainant had minimal, if any, interaction with S1 after September 2013. Complainant's other allegations that S1 made comments to Complainant's coworkers insinuating that she canceled the remaining group meetings because of Complainant and that Complainant "had a problem with prayer" arise from the same August 7, 2013 incident, and are therefore unlikely to occur again. Even considered together in a light most favorable to Complainant, the allegations in her complaint are not severe and pervasive enough to state a claim of harassment.
Damages
Although complainant claims to have suffered damages as a result of the incident at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).
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.
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
November 29, 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.
2 Complainant also raised a second claim alleging that the Agency carelessly handled an FMLA claim she filed and improperly disclosed confidential information to individuals without a "need to know." The Agency determined, and we agree, that Complainant lacked sufficient evidence for a finding of discrimination. As Complainant does not dispute this finding on appeal, we deem the matter closed and will not address it further in this decision.
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