0120113076
04-23-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120113076
Hearing No. 440-2009-00117X
Agency No. EEODFS-07-0937-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 6, 2011 final order 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.
BACKGROUND
During the period at issue, Complainant worked as a Revenue Agent at the Agency's Internal Revenue Service facility in Morton Grove, Illinois.
On October 12, 2007, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian) and national origin (Taiwan) when:
1. on September 1, 2006, she was not designated as Supervisory Revenue Agent in her manager's absence;
2. on February 28, 2007, she was denied a Quality Step Increase (QSI);
3. on March 21, 2007, her manager described how she could get employees fired, while directly looking at her;
4. in July 2007 and August 2007, her manager attacked her grammar, writing skills, language use and professionalism;
5. on August 16, 2007, her manager issued her a Departure Rating, which contained a narrative that did not support her 4.8 numerical rating;
6. on unspecified dates, her manager issued her work reviews with inaccurate statements; and
7. on unspecified date, her manager had her name removed from a computer refreshment list.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ).
As an initial matter, the AJ addressed Complainant's objections to the Agency's denial of an amendment to her complaint. On July 15, 2008, Complainant filed a request with the Agency to amend her formal complaint to include a constructive discharge claim (complainant resigned from her position in January 2008). The AJ noted that on February 9, 2009, the Agency determined that the constructive discharge was like or related to her other claims, but dismissed the constructive discharge claim because it determined that Complainant had not raised it within 45 of her resignation from Agency employment. On March 25, 2009, the AJ ordered Complainant to file any objections to the dismissal of her constructive discharge by April 30, 2009. However, Complainant did not do so. The AJ then denied Complainant's motion to amend the instant formal complaint to include the constructive discharge claim. As Complainant did not contest this ruling in the present appeal, we will not address this issue further.
Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On May 5, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
In reaching this decision, the AJ determined that the evidence gathered during the investigation established the following facts that were either undisputed or viewed in the light most favorable to Complainant:
Complainant was originally from Taiwan and is of Asian race. Complainant first became employed at the Agency (Internal Revenue Service) in 2002 as a Revenue Agent, GS-9. Prior to the events at issue, Complainant's annual performance evaluation summary rating (on a 1-5 scale) was 3.0 in 2003, 4.2 in 2004 and 4.6 in 2006.
In June 2006, Complainant was interviewed and selected for a GS-13 Revenue Agent position in the Small Business/Self-Employed ("SBSE") group. The SBSE manager ("manager") (Caucasian) was on the interview panel that selected Complainant for the position in SBSE. Complainant has named her as the responsible discriminating official.
Regarding claim 1, Complainant started in SBSE in September 2006. The group had 12 Agents. Right after Complainant joined SBSE, the manager designated three employees (all African American) to serve as Acting Manager in her absence. Complainant was not among those designated. While Complainant did not ask the manager if she could serve as Acting Manager, she understood from what the manager said at a group meeting that all GS-13 Agents would be given the opportunity to act as manager in her absence.
Regarding claim 2, in February 2007, the manager met with Complainant to discuss her work performance. The manager gave Complainant a positive review. However, when Complainant asked for a Quality Step increase (QSI), the manager told her that she needed to prove herself further.
Regarding claim 3, at a March 21, 2007 staff meeting, the manager outlined her evaluation procedures. At one point, during a discussion of how employees with poor performance might be fired, the manager turned and looked at Complainant.
On June 9, 2007, Complainant transferred to the Large and Mid-Size Business (LMSB) group and came under the supervision of a new supervisor. However, Complainant alleged that the manager continued to interact with her on some transitional business.
Regarding claims 4, 5 and 6, shortly after Complainant had left SBSE, the manager sent Complainant a case file review on a particular case and asked that Complainant make a number of corrections to the file so the case could be closed. Complainant asserts the manager was wrong as to every correction. The manager copied Complainant's new supervisor on the emails in this matter. In August 2007, the manager did the same regarding several other cases Complainant had worked on while in SBSE.
In August 2007, the manager gave Complainant a Departure Rating of 4.8 for her work in SBSE, the same rating she had received from her prior group. However, the manager added some negative comments to the rating, including that Complainant had not performed at the level of her annual rating, that Complainant made errors in her work, and that a taxpayer representative had asked that Complainant be removed from a case because of her "overly aggressive" demeanor.
Regarding claim 7, Complainant had problems with her computer and asked the manager to put her on the list to have her computer refreshed. On April 7, 2007, the manager asked that Complainant's computer be refreshed. On April 8, 2007, the manager sent a second email asking that Complainant's computer be refreshed and renewed that request on April 18. On April 26, 2007, the Agency started working on getting Complainant a loaned computer. ON May 8, 2007, Complainant was given a loaned computer. The AJ stated "crediting Complainant's version of events, it appears that Complainant and [the manager] had a difference of opinion as to what caused her computer difficulties and whether Complainant's computer needed to be refreshed. Complainant acknowledges that instead of getting her computer refreshed she received a loaned computer."
In addition to the claims accepted by the Agency concerning Complainant's treatment by the manager, the AJ noted that Complainant also raised allegations during the investigation that she was also harassed by her new supervisor (Caucasian) in LMSB. Basically, the AJ noted that Complainant claimed that the new supervisor had a poor impression of her from the manager and spoke to her in a "diminishing" manner. She also alleged that on her second day in LMSB, the supervisor admonished her for the way she spoke to him when she indicated she did not have to follow his instructions regarding whether she was going to work in the Morton Grove office on a particular day. The supervisor apparently angrily told her that he was the supervisor, not the reverse. Complainant said she responded by asking the supervisor whether he had a problem with women and said he could not expect her to "roll over and play dead like some Oriental woman." Complainant acknowledged that the supervisor later apologized for losing his temper. Complainant also alleged that the supervisor never did a case review of her.
Complainant resigned from her employment with the Agency in January 2008.
Based on this evidence, the AJ issued her decision. First, she noted that some of Complainant's allegations (1 - 3 and 7) are arguably time-barred because Complainant did not seek EEO counseling until August 21, 2007. However, the AJ noted that Complainant attempted to also frame her complaint as one of both disparate treatment and discriminatory harassment. Therefore, the AJ considered all seven incidents on the merits.
The AJ concluded that responsible Agency management articulated legitimate, nondiscriminatory reasons for each of the disputed actions which Complainant did not show were a pretext for discrimination based on her race and/or national origin. With regard to not being asked to be acting manager, the AJ found that the manager did not select Complainant initially because she was new to the group and on another occasion because she was on approved leave or because a non-bargaining unit employee was available. With regard to the denial of a QSI, the manager averred that QSIs are for extraordinary achievement over a sustained period of time, and Complainant had only been in the group for about five months when she asked for the QSI. Regarding staring at Complainant, the manager denied having any intent to single out Complainant. She stated she simply tried to have eye contact with everyone at the meeting. With regard to criticizing Complainant's writing and professionalism, including in the departure rating, the manager provided explanations and examples of a number of substantive and grammatical errors in work under review. The AJ found that even if there was room to debate the manager's opinions of Complainant's work, there was no evidence that the corrections were motivated by race or national origin.
Finally, with regard to her claim of ongoing harassment, the AJ concluded that Complainant did not offer sufficient evidence that the underlying conduct was based on her race/national origin. With regard to her claim of harassment by her new supervisor, the AJ found in the particular incident focused on by Complainant that it was Complainant, not the supervisor, who introduced the topic of race into the conversation. The AJ also determined that the alleged events, even considered together, were not sufficiently severe or pervasive to establish a hostile work environment.
The Agency issued its final order fully implemented the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
While Complainant argues on appeal the AJ erred in issuing a summary judgment because there are material facts at issue, she has not adequately identified those disputed facts that are material to the disposition of her discrimination claims. For example, Complainant asserts that in placed of the Quality Step increase, the manager promised her an opportunity to make a group presentation and then never allowed her to do so. This, however, is not relevant to the proffered reason why she was not given the QSI - that she had only been in her position for a brief time (five months). Complainant also argues that she can provide testimony from other witnesses that the manager stared directly at her during the talk about poor work performance. However, the AJ assumed this fact already in her analysis. In other instances, Complainant simply argues that events should be viewed in a context of race discrimination without proffering evidence to that effect.
Based on our independent review of the record, we find that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that any of the Agency's actions were motivated by discriminatory animus toward her race or national origin. Moreover, we concur with the AJ's conclusion that even considering the events alleged by Complainant together, they are not sufficiently severe or pervasive to establish a hostile work environment.
The Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.
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
April 23, 2014
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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