Fawn G.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120141979 (E.E.O.C. Sep. 1, 2016)

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

Fawn G.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120141979

Hearing No. 550-2012-00390X

Agency No. IRS-12-0217-F

DECISION

The Commission accepts Complainant’s appeal from the Agency’s March 21, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-12 Tax
Computation Specialist in the Appeals Division at the Agency’s facility in San Francisco,
California. On December 7, 2011, Complainant claimed that the Team Manager (M1) wanted
to discuss a case because she found a slight error in Complainant’s computation. Later that
day, Complainant claimed that M1 requested that Complainant send her all of her work for
review. Complainant believed that M1 was too detailed and subjected her to complete work
review because M1 could not find substantial errors in her work. M1 explained that randomly

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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selected or occasional reviews are required for evaluation purposes, but Complainant had
fewer cases reviewed during the appraisal period than co-workers on her team.

In addition, that same day, Complainant claimed that M1 told her that she was unqualified to
perform GS-12 level cases. Additionally, despite her requests, Complainant alleged that M1
repeatedly told her that there was no higher-graded work available for her. M1 stated that she
told Complainant that she lacked the computational experience and working knowledge of
complex GS-12 cases that would allow her to progress to the GS-13 level. M1 had previously
explained to Complainant that based upon her observations of the quality and efficiency of
Complainant’s work product, she believed that it was premature for Complainant to receive
higher-level assignments. As a result, M1 and Complainant discussed working toward
developmental assignments that would prepare Complainant for higher-graded work. In
January 2012, M1 developed a Career Learning Plan with suggested actions and strategies to
prepare Complainant for higher-level work; however, Complainant declined to meet and
discuss the plan.

Around late-August or early-September 2011, Complainant alleged that the Acting Manager
(AM) assigned her more cases with less time to complete them. Complainant believed that
AM felt that she was expendable and that AM could get away without accountability.

On February 25, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
national origin (Asian-Indian), sex (female), age (59), and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, her manager subjected her to
100 percent review of her work; her manager denied her request for higher-graded work, made
disparaging remarks about her abilities; and on a recurring basis, her manager assigned her
more cases, and gave her less time to complete her assignments, than similarly situated others.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted summary judgment in favor of the
Agency, and issued a decision on March 7, 2014.

In the decision, the AJ initially determined that the alleged incidents were insufficiently severe
or pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged incidents were based on discriminatory or retaliatory animus. For

2 The Agency dismissed several additional claims for untimely EEO counselor contact and
failure to state a claim. Complainant did not specifically challenge the dismissal of these
claims on appeal. In addition, the Agency denied Complainant’s attempt to amend her
complaint to add a claim as the claim was untimely and failed to state a claim. Nonetheless,
the Commission will consider these claims as background evidence in support of
Complainant's overall hostile work environment claim.
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example, the AJ noted that Complainant had presented no evidence challenging the Agency’s
assertion that M1 did not review 100% of her work. In fact, Complainant later admitted that
M1 did not review all of her work. Additionally, Complainant failed to show that this was not
a part of the routine supervision given to all similarly situated employees. Next, the AJ found
that Complainant had nothing other than her own speculation to suggest that she was qualified
to perform the higher-graded and more complex work which she sought. The AJ noted that
this claim was particularly problematic in light of her refusal to meet with M1 about the Career
Learning Plan developed by M1 after discussing Complainant’s concerns. Finally, the AJ
found that Complainant had put forth no evidence to call into question AM’s assertion that
during the two-week period she assigned cases, she did anything other than make assignments
based upon a balance of caseloads relative to grade level.

The AJ concluded that beyond her bare assertions, Complainant neither offered, nor did the
record contain, any evidence from which a reasonable trier of fact could infer that the
Agency’s actions were a pretext for unlawful discrimination or reprisal. As a result, the AJ
found that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order fully implementing the
AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ overlooked key facts. Complainant argues that
M1 reviewed her work without giving her feedback which was an intimidation technique.
Complainant claims that she was limited by managerial discretion when she was not given
higher-graded assignments or extended opportunities for advancement. Further, Complainant
contends that she was given too many cases in a short span of time and that her manager
provided misrepresenting statements under oath. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

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Hostile Work Environment

To establish a claim of harassment a 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 her 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).

Therefore, 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 her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was discriminated against and subjected to a hostile work environment as evidenced by
multiple incidents. Construing the evidence in the light most favorable to Complainant, the
Commission agrees with the AJ that Complainant has not shown she was subjected to conduct
sufficiently severe or pervasive to establish to a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. For example, M1 denied subjecting Complainant’s work
to 100 percent review. ROI, at 154. Rather, M1 stated that randomly selected or occasional
reviews are required and intended to evaluate performance and assist employees as necessary.
Id. M1 noted that she actually reviewed less of Complainant’s work than her co-workers
during the relevant appraisal period. Id. M1 added that she has responded to inquiries as a
result of customer contact where computations were incorrect and that Complainant required
assistance and guidance on procedures or processes to finalize accurate computations. Id.

In addition, M1 stated that she discussed Complainant's request for higher-graded work in
December 2011, and they discussed working towards developmental assignments that would
prepare her for working higher-graded work at the GS-13 level. ROI, at 155. M1 affirmed
that these goals were subsequently memorialized in a Career Learning Plan, which
Complainant declined to discuss or review. Id. at 155-56. M1 noted several performance
deficiencies that Complainant needed to improve upon prior to receiving higher-graded work.
Id. at 156. M1 denied telling Complainant that she was not qualified to work GS-12 cases;
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rather, she suggested that Complainant lacked the experience and working knowledge in
working the range of complex GS-12 computational issues at her current grade level to enable
her to progress forward for development towards working GS-13 computational issues and
cases. Id. at 157. Finally, AM denied assigning Complainant too many cases in too short a
period of expected completion time. Id. at 184. AM explained that she made assignments
based on balancing inventories, the employee’s grade level, and the grade of the cases. Id.

Moreover, the Commission finds that Complainant has not proffered any evidence from which
a reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of a summary judgment was appropriate and a preponderance
of the record evidence does not establish that discrimination occurred.

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
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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

September 1, 2016
Date