EEOC Appeal No. 0120122603
05-08-2015
Complainant, aka Ela O., v. Dep't of the Treasury
Ela O.,
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120122603
Hearing Nos. 410-2010-00183X, 410-2010-00483X, 410-2010-00324X, and 410-2010-0079X
Agency Nos. IRS090122F, IRS090939F, IRS100478F, and IRS110305F
DECISION
On June 1, 2012, Complainant filed an appeal from the Agency's May 1, 2012, final order 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst, GS-09, at the Agency's Chamblee, Georgia facility. Complainant filed numerous EEO complaints prior to the issues that arose in these complaints.
On November 18, 2008, Complainant received a Leave Concern Letter from her supervisor (S1) dated October 20, 2008. Complainant complained to her second level supervisor (S2), who subsequently directed S1 to rescind the letter because he had approved all of Complainant's leave requests and had not counseled her regarding her leave usage prior to issuing the letter.
In January 2009 Complainant was reassigned to a Tax Analyst, GS-9, position in the Planning and Analysis office. Complainant's new supervisor (S3) requested leave calendars from all employees. Complainant requested leave on various dates in April, May, June, July, August, November, and December. S3 approved all of Complainant's leave except for the second week that she requested in December due to concerns about workload inventory management. S3 told Complainant that she would revisit the leave request closer to the holidays.
In early 2010, the Agency announced a vacancy for a Management and Program Assistant position, GS-12. Complainant applied for and qualified for the GS-11 position, and was subsequently interviewed. The interview panel selected the Selectee (no prior EEO activity) for the position.
In or around April 2010, S3 instructed Complainant to complete her time sheet to reflect the time that Complainant had been in training. Complainant refused to note the training on her time sheet, asserting that she felt this was fraudulent. As a result, on April 26, 2010, Complainant received a Letter of Reprimand for failure to follow a management direction.
Complainant sent an email to the Commissioner of the Agency regarding her EEO claims. Management found that this was in violation of the Agency's policy about bringing issues through the employee's chain of command instead of directly to the head of the Agency. As a result, the Planning and Analysis Chief issued Complainant a Counseling Memorandum dated June 14, 2010, directing her to follow the chain of command.
On April 8, 2010, Complainant requested immediate reassignment from S3's supervision, which was granted. On June 25, 2010, Complainant was reassigned back to her previous Management and Program Analyst, GS-9, position in the Examinations office, and had a new supervisor (S4) and second line supervisor (S5).
In April 2010, the Agency's Employee Tax Compliance (ETC) branch did an audit of all employees' tax files, which revealed that Complainant had failed to timely pay her 2008 taxes. As a result, the ETC Branch Chief forwarded the issue to Complainant's management chain for administrative handling, and S4 proposed to suspend Complainant for three days due to her tax noncompliance. Ultimately the S5 only suspended Complainant for one day, which was the lower end of the recommended discipline for a tax infraction by employees.
Complainant received a performance rating of "Exceeds Fully Successful" for the rating period that ended December 31, 2010. This rating included Complainant's work under both S3's and S4's supervision. Complainant did not agree with the rating.
In March 2011, Complainant brought her EEO complaints to the attention of the Wage & Investment Operating Division Commissioner. The Commissioner subsequently forwarded the email to S5 for a response. S5 reminded Complainant of the necessity of following the chain of command and reminded her that her EEO matters were being handled through the EEO process.
A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters. As a result, S5 proposed a ten day suspension. Through the collective bargaining agreement process, Complainant was offered and accepted an alternate form of discipline; teaching a class on the importance of complying with the chain of command. Complainant never taught the class, and as a result, in September 2011 the Agency proceeded with implementing the discipline of a 10 day suspension for her misconduct.
On November 21, 2008, Complainant filed the first of four EEO complaints addressed in this appeal. Complainant alleged in those complaints that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, amongst other things, she received a leave concern letter, she was not selected for a GS-11 position, she received an unwarranted evaluation, she was denied a reassignment, she was denied advanced sick leave, and she was assigned work outside her position description.
At the conclusion of each of the investigations for the four Complaints, 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). Complainant timely requested a hearing for each complaint, and the AJ held hearings on May 18, 2011, February 17, 2012, March 7, 2012, and March 28, 2012. The AJ consolidated all of the complaints and issued a decision on May 1, 2012. The AJ found that Complainant failed to establish that she was subjected to retaliatory harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
With regard to the Leave Concern Letter, evidence in the record establishes that S1 was concerned about Complainant's excessive use of leave and as a result issued her a letter. However, S2 told S1 to rescind the letter because he had approved the leave requests and had not verbally counseled Complainant about excessive leave prior to issuing the letter. The record indicates that S1 mistakenly thought that the Leave Concern Letter was an appropriate first step to address his concerns with Complainant about her excessive use of leave. There is no evidence in the record that S1 was motivated by Complainant's prior EEO activity when he issued the Leave Concern Letter.
With regard to S3 denying Complainant's advance leave request, the record establishes that S3 denied the request due to concerns about workload inventory management during that time of the year. Additionally, the denial was not absolute as she told Complainant that they could revisit the leave request closer to the holidays. There is no evidence in the record that this was due to Complainant's prior protected EEO activity.
With regard to the non-selection, the interview panel agreed that the Selectee had a stronger skill set than Complainant, including 16 years of management experience. Additionally, they asserted that the Selectee had the best interview. In contrast, the interview panel stated that Complainant had a poor interview and a very generic skill set. Complainant was ranked fourth and last out of the best qualified applicants, and the selecting official followed the interview panel's recommendation and selected the Selectee for the position. The AJ found that Complainant did not express an opinion that she was more qualified than the Selectee, nor did she compare her qualifications or her interview performance to the Selectee's qualifications or interview performance. After a review of the entire record, we find that Complainant failed to establish that her non-selection was motivated by discriminatory animus towards her prior protected EEO activity.
With regard to the April 26, 2010 Letter of Reprimand, the record reflects that this was issued because Complainant failed to follow management's instructions regarding her time sheet. While Complainant may have disagreed with management's instructions, she failed to present any evidence that management's actions were motivated by discrimination towards Complainant's prior EEO activity.
The record reflects that Complainant was suspended for one day because she failed to timely pay her 2008 taxes. The record reflects that this was standard when any Agency employee failed to comply with tax regulations, and this was actually a lenient discipline when compared to the Agency's recommended disciplinary actions for such offenses. Additionally, there is no evidence in the record that this was motivated by discrimination towards her prior protected EEO activity.
With regard to Complainant's 2010 performance evaluation, the AJ found that while Complainant disagreed with her performance rating, she did not offer any evidence that she was deserving of a higher rating. We find that there is no evidence that her rating was motivated by discriminatory animus towards Complainant because of her prior protected EEO activity.
Finally, we will address the Agency's disciplinary actions towards Complainant when she brought her EEO concerns to Agency leadership. We note that employees should not be disciplined for reporting EEO matters, as such discipline could be a per se violation of our EEO laws' prohibition on retaliation, and could certainly have a chilling effect on the EEO process as it could reasonably deter employees from pursuing the EEO process. This includes reporting EEO matters to Agency leadership.
The record is clear that in each instance that Complainant raised her EEO concerns with Agency leaders she was subjected to varying forms of discipline. For example, Complainant sent an email to the Commissioner of the Agency regarding her EEO claims, and as a result, she was issued a Counseling Memorandum dated June 14, 2010, directing her to follow her immediate chain of command instead of bringing these issues to Agency leadership. In March 2011, Complainant brought her EEO concerns to the attention of the Wage & Investment Operating Division Commissioner, and as a result Complainant was verbally counseled about the necessity of following the chain of command. A few days later, Complainant again emailed the Wage & Investment Operating Division Commissioner and other Agency executives regarding the same EEO matters, and as a result she was issued a 10 day suspension.
We note that each time that Complainant brought to Agency leadership's attention her EEO concerns, she was engaging in a protected EEO activity because she was opposing discrimination by explicitly communicating to her employer a belief that the Agency's activities constitute employment discrimination. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20, 1998) at 8-3. We find that disciplining an individual for raising EEO concerns with Agency leadership has a chilling effect on the EEO process as it is reasonably likely to deter others from opposing discrimination by bringing EEO concerns to the attention of Agency leadership. This may also have a chilling effect on the EEO process by deterring individuals who believe they are being subjected to harassment by individuals in their chain of command from raising these matters to higher level officials.
We also note that after Complainant continued to contact Agency leadership about her EEO concerns, the Agency attempted to have Complainant teach a class to other employees on the importance of complying with the chain of command. The record indicates that the purpose of this class was to use Complainant as an example, and the class would have relayed the message to other employees that they cannot raise EEO matters with upper leadership of the Agency, and instead can only raise these issues with their immediate chain of command and the EEO office. While the class never took place because Complainant refused to conduct it, we note that this certainly would have caused a chilling effect on the EEO process as it would have deterred individuals from opposing discrimination by bringing EEO concerns to the attention of Agency leadership.
After a review of the entire record, we find that Complainant established that she was subjected to reprisal discrimination when she was issued a Counseling Memorandum, verbally counseled, and issued a 10 day suspension for bringing her EEO concerns to Agency leadership and outside of her immediate chain of command.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part, as a preponderance of the evidence of the record establishes that Complainant was subjected to reprisal when she was disciplined for bringing her EEO concerns to the attention of Agency leadership, as described above. The Agency is ORDERED to comply with our Order below.
ORDER
The Agency is hereby ORDERED to take the following actions:
1. The Agency will immediately take steps to ensure that all reprisal ceases and desists in the facility. The Agency will ensure that it takes steps to immediately address any reports of reprisal brought to its attention, and that employees know that they can bring EEO concerns to Agency leaders.
2. Within 120 days of the date on which this decision becomes final, the Agency shall expunge all of Complainant's records of any reference to the disciplinary actions and counselings that she received for reporting her EEO concerns out of the chain of command and to Agency leadership, including but not limited to the 10 day suspension.
3. Within 120 days of the date on which this decision becomes final, the Agency shall calculate an award of back pay with interest, and any benefits due, in accordance with 5 CFR � 1614.501, for the 10 days that Complainant was suspended. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute about the amount of back pay, interest due, and/or other benefits, the Agency will issue a check to Complainant for the undisputed amount within 120 calendar days of the date this decision becomes final. Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
4. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of her request for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
5. Within 120 days of the date on which this decision becomes final, the Agency shall provide specialized, in person, 8 hour training to all Agency management officials at the Agency's Chamblee, Georgia facility regarding employees' rights and managements' responsibilities with respect to EEO laws, with special emphasis on retaliation.
6. The Agency shall consider taking disciplinary action against the responsible management officials who disciplined Complainant for contacting Agency leadership. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action.
7. The Agency shall post the attached Notice of Discrimination, as described below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
POSTING ORDER (G0914)
The Agency is ordered to post at the Agency's Chamblee, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
5-8-2015
__________________
Date
2
0120122603
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122603