0120102561
09-21-2010
Carolyn Torres, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Carolyn Torres,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120102561
Agency No. IRS090902F
DECISION
On May 28, 2010, Complainant filed an appeal from the Agency's May 18, 2010, final 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. The Commission deems the appeal timely and accepts it for de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUE PRESENTED
The issue presented is whether the FAD correctly found that Complainant did not prove that she was subjected to retaliatory harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Contact Representative, GS-962-9, with the IRS Wage and Investments (W&I) Compliance Services Automated Collection System (ACS) in Austin, Texas. On November 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity [under Title VII] when:
(1) on August 1, 2009, management verbally attacked her;
(2) on August 25, 2009, her accomplishments were not recognized during
Development Day; and
(3) on October 6, 2009, she was denied the opportunity to work credit hours.
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 EEOC Administrative Judge (AJ). After Complainant failed to respond in a timely manner, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
FAD
The FAD found that the incidents cited by Complainant were not based on, or were in any way related to her prior EEO activity (complaints filed on October 25, 2007 and March 25, 2009). The Agency found that Complainant provided no causal connection between her prior EEO activity and the matters at issue. Moreover, the Agency found that the record did not contain any evidence that any of Complainant's managers (M1 and M2) made any employment decisions based on Complainant's participation in the EEO process. Complainant's Managers denied any knowledge of Complainant's prior EEO activity. Complainant's first line supervisor (S1) stated that Complainant informed him a few days after filing the prior EEO complaint that she had done so. He stated he was not involved in Complainant's prior EEO activity. Therefore, the Agency found that Complainant could not show she was harassed by management in reprisal for prior EEO activity.
The FAD then assumed arguendo that Complainant established she was in the protected group for having engaged in EEO activity, but found no support for her allegations of discriminatory harassment. The FAD noted that the August 1 incident involving Complainant's assertion that M1 yelled at her for providing outdated inventory lists to employees was refuted by M1 who stated that she was not rude or confrontational. M2 agreed with M1. M1 noted that it did not appear Complainant was upset or objected to the manner in which M1 spoke with her. M1 stated that Complainant agreed that work was being duplicated. The FAD noted that Complainant admitted to having provided unit employees with outdated inventory lists. The FAD also found that it was not clear that M1 raised her voice, but even if M1 did raise her voice upon learning that Complainant was providing outdated inventory to employees to work, this would not constitute harassment.
The FAD found that with respect to Complainant not receiving recognition during the August 25, 2009 Employee Recognition Day, the ACS Local Operation Manager explained that front-line employees who served as instructors, coaches, "double plugged" with new employees and participated on the "My Opinion Counts" teams were recognized during the August 25, 2009 Employee Recognition Day by receiving special act awards for those activities. Lead employee, including Complainant, did not receive special act awards for performing the aforementioned duties because these tasks were required by their position. The FAD noted however, that Complainant did receive a performance award for her accomplishments as a lead.
Finally, the FAD found that upper management's decision to have Complainant's organizational unit conform with the Division's policy for obtaining advance authorization to work credit hours resulted in Complainant not working the entire three credit hours she had signed up to work October 6, 2009. Instead she worked only 90 minutes of credit hours before she was told she could not work credit hours unless they were requested and approved in advance. The Agency found that Management's decision to enforce Agency policy requiring employees to request advance authorization in order to work credit hours was appropriate and was not directed at Complainant who acknowledged that the email regarding obtaining advance authorization was sent to all members of Team 105.
The FAD found that there was no evidence that a hostile or abusive work environment existed. Instead, Complainant presented three allegations of harassment by management which the record indicates were appropriate and were within management's authority. The FAD found that in this case Complainant's harassment allegations were not supported by any evidence of retaliation. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant makes no new arguments on appeal. The Agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
Harassment
To establish a claim of harassment an employee must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 (March 8, 1994).
Complainant has not alleged any conduct which rises to the level set forth above. Further, she has not provided any persuasive evidence that her prior EEO activity motivated he Agency's actions.
Disparate Treatment
We find that issues (2) and (3) should also be analyzed under a disparate treatment framework. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
To establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). We find that Complainant has established a prima facie case of reprisal as to issues (2) and (3).
As to issue (2), Complainant maintained that her accomplishments were not recognized during Development Day. The Agency indicated that Lead employee, like Complainant, did not receive special act awards for performing the aforementioned duties because these tasks were required by their position. Complainant failed to establish that the Agency's explanation for why she did not receive recognition was a pretext for discrimination. The fact that some of the individuals who received recognition that day had prior EEO activity undermines her claim. Accordingly, we find no discrimination here.
As to issue (3), Complainant maintains that, on October 6, 2009, she was denied the opportunity to work credit hours. The Agency has articulated a legitimate, nondiscriminatory explanation for the action which is that the Program Manager told S1 that credit hours should only be approved when there is an organizational need and that the request to work credit hours should be approved prior to the hours being worked. In addition, the employee would have to justify that there is a need to work the additional hours. He asserted that the change to working credit hours was noted on the sign-in sheet and he states that he told everyone verbally. Although Complainant contends that the action was directed at her, and intended to retaliate against her for her prior EEO activity, the record shows that the direction affected her entire team. Based on this record, which does not include the benefit of an Administrative Judge's finding after a hearing, we simply cannot conclude that management's motivation here was based on retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/21/10______________
Date
2
0120102561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102561