0120162806
01-05-2017
Chau Q.,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
Chau Q.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120162806
Agency No. IRS160528F
DECISION
Complainant timely appealed to this Commission from the Agency's August 5, 2016 dismissal of her complaint of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Assistant ("MA") (Seasonal, GS-6/7) at the Agency's Identity Theft and Victim Assistance Operation ("the Operation") in Kansas City, Missouri.
On July 28, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment resulting from discriminatory harassment based on her race (African-American) when:2
1. From December 2015 through the date of filing, Complainant's coworker ("C1") has not filled a supply order that Complainant submitted; C1 asked Complainant to resubmit the same supply order five times between December and February 2016; when Complainant included a supply order form with her February 4, 2016 re-request, C1 refused to sign it; Complainant's supervisor told her to be patient with C1, but as of July 28, 2016, Complainant had yet to receive the requested supplies;
2. On January 20, 2016, C1 came to Complainant's desk and condescendingly asked her for the definition of "ensure"; then later that day, when Complainant asked her to clarify a control assignment she sent out, C1 responded in a "smart-alecky" way, "Do you want me to read it to you?";
3. In early May 2016, C1 told Complainant and another African-American employee that they could submit their photographs for the website that do not "include their homies";
4. On May 17, 2016, when Complainant approached C1 to ask about a meeting and some mail that was put in her inbox, C1 became argumentative, stood up, and twice called Complainant "honey"; and
5. On unspecified dates, C1 delegated her responsibilities to the other MAs, including asking Complainant to provide training to a new MA on detail with the Agency.
As an MA, Complainant, provides administrative and research support for her first level supervisor ("D1"), a Department Manager, and completes work assignments for her second level supervisor, the Operations Manager ("OM"). The OM is supported by the Lead MA. The Lead MA is responsible for distributing OM's work assignments to the other MAs, maintaining an even workflow among the MAs, training new MAs, and providing administrative support, such as ordering office supplies. Complainant temporarily took on much of the responsibilities of the Lead MA while the position was vacant in 2015; however, her coworker ("C1") was hired to fill the position in November 2015.
Department Managers repeatedly complained to OM about C1's off-putting and "condescending" demeanor toward them and their MAs, and about the delays and confusion caused by C1's repeated failure to consult or inform them when changing processing procedures or assigning tasks to their MAs. OM explicitly established C1's authority regarding assignments to MAs, informing the Department Managers that "if it comes from C1 it comes from me." C1 exercised her authority by tasking Complainant with Lead MA assignments, including training an employee detailed as an MA, which she and D1 understood this to be C1's responsibility.
Both on and off site MAs also complained to OM, but she attributed those complaints to poor communication by all of the MAs, not just C1. While OM was aware that an ongoing conflict existed between C1 and Complainant specifically, she believed Complainant was equally to blame. In March 2016, OM met with both C1 and Complainant about "negative emails," they allegedly sent each other. According to OM, the meeting resolved the conflict for less than a week. In May 2016, OM spoke with C1 individually after Complainant and D1 informed her that C1, who is Caucasian, told Complainant and her colleague, the only two African-American MAs in the office, not to include their "homies" in photos submitted to a work website. The meeting had minimal impact based on C1's disproportionate and aggressive response when Complainant approached her about mail she mistakenly believed C1 left on her desk. Both D1 and another Department Manager ("D2"), who was filling in for OM that day, witnessed C1 stand and speak to Complainant in a "derogatory" manner. D2 attempted to resolve the matter by having both Complainant and C1 discuss mail procedures in a conference room. D2 informed OM about the incident and suggested that OM offer conflict resolution training given the other MA complaints. As of the date of filing the conflict remained unresolved.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
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).
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). With regard to the claims before us, we agree with the Agency's finding that "C1's comments may have been rude or offensive, and her conduct inappropriate and obstructive on more than one occasion," but ultimately, Complainant's allegations were not "sufficiently severe or pervasive" to create an objectively hostile work environment, thereby failing to state a claim. However, we note that D1 and OM, who, as Complainant's supervisors, were responsible for ensuring Complainant was not subjected to workplace harassment, were aware of that their efforts to resolve the conflict between C1 and Complainant were unsuccessful, yet neither indicated that efforts were being made to find an alternate resolution.
In her appeal to this Commission, Complainant alleges that C1continues to harass her, and identifies at least three specific incidents that took place after she filed the instant complaint. Complainant also raises a new allegation that C1 has engaged in ongoing daily harassment that has caused her to feel threatened and fear for her safety. Complainant alleges that these new claims of harassment are based on her race, as well as reprisal for protected EEO activity associated with pursuing the instant complaint. Because Complainant did not include these new claims or basis for discrimination in her formal complaint, we will not adjudicate them in this decision. If Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
January 5, 2017
__________________
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 The original complaint included an additional claim (claim 2) alleging nonselection, which the Agency dismissed as untimely. In her appeal, Complainant stated that she was specifically appealing the harassment claim (claim 1). Thus, the nonselection claim will not be addressed in this decision.
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