Anya V.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120172674 (E.E.O.C. Nov. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Anya V.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120172674

Agency No. IRS151189F

DECISION

On July 31, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a). Complainant filed
the appeal alleging that the Agency failed to timely issue a final Agency decision. Almost
contemporaneously, the Agency issued its final decision on August 3, 2017, concerning an equal
employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as an Individual Taxpayer
Advisory Specialist in Denver, Colorado.

On May 15, 2016, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected her to a hostile work environment and discriminated against her based on race (mixed),
national origin (American), sex (female), religion (Jewish) color (Mixed), disability (mental and
physical), and in reprisal for prior protected EEO activity when:

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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1. on January 26, 2015, Complainant’s coworker (hereinafter referred to as “CW1”)
followed Complainant into the ladies' restroom and proceeded to mock
Complainant's disabilities by creating a jerking spasmodic appearance, and CW1
did so until Complainant contacted a female Security Guard who ran CW1 out of
the restroom;

2. on February 17, 2015, Complainant’s coworker (hereinafter referred to as
“CW2”), accompanied by CW1 approached Complainant from behind and
pounded on her office ·furniture in a rage; Complainant tried to escape but was
physically blocked by CW2, who positioned himself inches from her body and
puffed up his chest at her; and,

3. between April 6 and May 5, 2015, her first line supervisor harassed Complainant
in a manner which included bullying, physically accosting her, and making
gestures and comments of a sexual nature, including, but not limited to, looking at
Complainant's hips and chest area and stating, “...this is not my first rodeo."

After an 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 requested a hearing.

During an initial telephone conference, the Agency requested to depose Complainant. This
request precipitated a circumstance where Complainant was breathing erratically and a 30-
minute recess was necessary. Upon renewing the conference, Complainant requested, among
other matters, the following: that a number of city blocks be vacated around the deposition site,
that the Agency provide bulletproof vests for herself, her "aides-de-camp", a canine, and that the
Agency provide a panic room. The AJ explained that if those were really necessary
accommodations, then she could not proceed with a hearing because the requests were not
reasonable. The AJ granted Complainant additional time to gather a limited list of
accommodations which would allow her to be deposed.

Shortly after, Complainant provided the AJ with the following reasonable accommodation
requests: 1) one tailored bullet proof vest; 2) an armed female Special Agent to be on alert and
monitor the actions five listed Agency employees and their family members on the day of the
deposition; 3) forbid aggressive males near Complainant; 4) six pack of sealed, untampered
bottled water; 5) breaks for Complainant in a private room; 6) Ouija Board for efficiency; 7) a
prohibition of any leaks of Complainant’s whereabouts on the day of the deposition to any of the
478 Agency employees at the Denver office, particularly to three listed Agency employees.
Complainant additionally requested that the deposition not be held at “the scene of the crime.”
The Agency responded to each request arguing that there was no medical necessity to any of the
requests.

On June 14, 2017, the AJ issued an Order of Dismissal. The AJ stated that the progress of the
case raised serious questions about the ability of Complainant to soundly proceed in the case.
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The AJ determined that it was impossible for Complainant to understand the proceedings, and
therein remanded the case to the Agency for a final decision.

On July 31, 2017, Complainant filed the instant appeal. She argued that the Agency failed to
timely issue her a final decision. Complainant provided a lengthy appellate statement that
covered her allegations, and theories of discrimination. Complainant reiterated statements that
the Agency failed to reasonably accommodate her, and subjected her to a discriminatory and
hostile work environment. Complainant asserted that she is “a political prisoner of war-like
(“POW-like”) torture.” Complainant requested that the Commission find in her favor.

Shortly thereafter, on August 4, 2017, 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.

Claim 1

Complainant alleged that on January 26, 2015, her coworker (African-American, black, non-
denominational, female) (hereinafter referred to as “CW1”) followed her into the restroom and
started mocking her medical conditions, laughing and imitating her labored breath and tremors in
a bizarre and depraved fashion. Complainant stated that she fled to the Safety Officer’s office
following the interaction. Complainant alleged that CW1 generally violates rules, policy, and
regulations.

Complainant’s second line supervisor, the Territory Manager, Supervisor of Individual Tax
Advisory Specialist (Caucasian, White, Catholic, female, German/Irish) (hereinafter referred to
as “S2”) stated that Complainant informed her of the allegation on the day of the incident. S2
noted that Complainant referred to CW1 as a manager, but CW1 is not a manager. S2
investigated the situation and did not find substantive evidence to support Complainant’s
allegations. CW1 also denied being in the bathroom with Complainant.

Claim 2

On February 17, 2015, Complainant alleged that her coworker (African-American, black,
Catholic, male, American) (hereinafter referred to as “CW2”) and CW1 assaulted her from
behind. She noted that due to her disabilities, she wears headphones and uses a dual monitor, and
was wearing her headphones and viewing the monitors when she was assaulted. Complainant
alleged that CW2 pounded on her desk loudly, and puffed up his chest at her during the assault.
Complainant alleged that CW1 and CW2 then prevented her from leaving her office. As a note,
Complainant listed CW2 as a manager, but he is her coworker.

S2 stated that Complainant has an assigned on-the-job-instructor (“OJI”) who assists her. On the
morning of the incident, Complainant was supposed to work with the OJI, and then work the
public tax counter in the afternoon. However, Complainant started to call customers to her
cubicle in the morning, and when she could not assist them, sent them to CW1 and CW2’s desks.
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S2 noted that Complainant was not scheduled to assist taxpayers that morning, and it was against
procedure to refer taxpayers to other employees who are already with taxpayers, which is what
Complainant was doing. S2 noted that in doing so, Complainant violated procedures to protect
accidental/inappropriate disclosure of taxpayer information.

Based on his experiences with Complainant, CW2 asked CW1 to accompany him as a witness.
CW2 wanted to remind Complainant that she needed to work with her OJI, to assist taxpayers,
and that she could not simply send customers to him, or other colleagues, when she could not
help the taxpayer. When they walked over, they stood in Complainant’s cubicle doorway and
CW2 attempted to call out Complainant’s name several times, but she could not hear over her
headphones. CW2 tapped on her cubicle wall while standing several feet away from her, which
got Complainant’s attention. CW2 stated that he only spoke with Complainant to tell
Complainant to stop sending taxpayers to him, and other employees. CW2 asserts that
Complainant has a racial bias against African-Americans, particularly African-American men.
CW2 noted that on numerous occasions, management directed him to help Complainant’s
taxpayer because she refused to assist African-American customers.

An investigation was conducted, and CW1 and CW2 were cleared of any wrongdoing.

Claim 3

Complainant alleged that her first line supervisor, the Supervisor Individual Taxpayer Advisory
Specialist (Caucasian, white, Christian, male, American) (hereinafter referred to as “S1”)
harassed her and was enraged about her disabilities. She explained that S1 once blocked her
“with his protruding gut in a hall,” was drunk, and told her that he did not care about her medical
conditions. Complainant also alleged that S1 “abused his authority to stalk and have close
physical access to the Complainant’s famous Adonis-like body…”. Complainant also alleged
that S1 once tried to block her from leaving a meeting while she was suffering, an undisclosed,
attack, and then called 911 instead of letting her just recover on her own. The record contained a
lengthy description of various incidents that Complainant alleges to have been perpetrated by S1.

S2 stated that there was no credence to Complainant’s allegations against S1, and that he did not
treat Complainant any differently from the rest of the team. S2 felt that Complainant only
responded well to patient white/Caucasian women, and found many others to be “triggers.” S2
stated that Complainant seemed to have problems with men, and did not seem comfortable
around men. She noted that S1 became Complainant’s direct supervisor on April 6, 2015. S2
noted that on May 5, 2015, Complainant had an anxiety attack during a group meeting which
caused her breathing to worsen. S1 acknowledged making the statement, “this is not my first
rodeo”. He stated that it was made regarding being a group manager, and working with
reasonable accommodation for visually impaired employees, such as Complainant. S1 noted that
during a group meeting, Complainant left alleging that she was suffering through a tachycardia.
S1 was concerned for Complainant’s wellbeing and followed her out of the meeting to see if she
required 911 assistance. S1 asserted that Complainant replied yes to 911, and that the fire
department and paramedics arrived to assist her.
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ANALYSIS AND FINDINGS

As a preliminary matter, we find the Agency’s issuance of its final decision was timely.

Decision without a Hearing

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. (Aug. 5, 2015) (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”).

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions.

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Regarding all three claims, S2 properly and timely investigated each claim by obtaining
statements from Complainant, the accused, and any other available witness statements. In each
investigation, there was no evidence found to substantiate Complainant’s allegations against S1,
CW1 and CW2.

In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory
animus. Complainant has not provided any evidence that suggests that the Agency's reasons were
pretext for discrimination or that discriminatory animus was involved.

Harassment

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) she belongs to a statutorily protected class; (2) she 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 his 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 Agency. Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982).

In short, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis – in this case, because of her race,
national origin, sex, religion, color, disability, and in reprisal for prior protected EEO activity.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

Complainant has cited various incidents that she found to be adverse or disruptive to her. For
example, Complainant alleged that CW1 made fun of her disabilities (claim 1), and that both
CW1 and CW2 assaulted her at work (claim 2). The record does not support either allegation. In
the third claim, Complainant alleged that S1 chased after her when she attempted to leave a
meeting, and made lewd sexual remarks to her (claim 3). The record, however, demonstrates an
entirely different situation where Complainant suffered an anxiety attack that severely limited
her breathing, and S1 ran after her to ensure her safety. Based on the record, we find that
Complainant has produced no evidence to establish that her race, national origin, sex, religion,
color, disability, and in reprisal for prior protected EEO activity was a factor in any of these
actions.

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Reasonable Accommodation

We note here that Complainant’s allegations of reasonable accommodation denials stem from the
AJ and Agency allegedly failing to provide her with a set of reasonable accommodation requests
for the hearing process.

Complainant alleged that she was denied a reasonable accommodation when the AJ would not
provide her with a list of her requests. The record demonstrates, however, that the AJ attempted
to address Complainant’s concerns. Specifically, the AJ informed Complainant that her initial
requests were not possible, and unreasonable, but that if she provided another list, an attempt
would be made to accommodate them. Complainant did provide a new list of accommodation
requests, but the seven listed requests were not documented by any medical necessity, and
moreover, were simply not reasonable requests. For example, in her second request, Complainant
asked that “aggressive males” be removed from her vicinity, that the Agency monitor the
whereabouts of several Agency employees, a few of which were fictional, and that she be
provided with armed guard service from a female agent. Based on the record, we find that
Complainant failed to proffer sufficient evidence to show that she required such reasonable
accommodations during the EEO complaint process. We note that, although individuals
protected under the Rehabilitation Act are entitled to reasonable accommodation, they are not
necessarily entitled to their accommodation of choice. See Castaneda v. United States Postal
Service, EEOC Appeal No. 01931005 (February 17, 1994). Given the specific facts in the
present case, we find that Complainant failed to establish that she was denied a reasonable
accommodation, as she claimed.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding of no discrimination.

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.
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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. 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.
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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.
Carlton M. Hadden, Director
Office of Federal Operations

November 15, 2018
Date