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

Equal Employment Opportunity Commission

Dec 2, 2016

0120141037 (E.E.O.C. Dec. 2, 2016)

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

Gregory F.,1
Complainant,

v.

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

Appeal No. 0120141037

Agency No. IRS-12-0815-F

DECISION

On January 21, 2014, Complainant filed an appeal from the Agency’s January 15, 2014, final
decision concerning his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as an Insolvency Specialist at the Agency’s facility in Sacramento,
California. In an EEO complaint filed on October 30, 2012 and amended on November 15,
2012, February 14, 2013, and June 3, 2014, Complainant alleged that the Supervisory
Bankruptcy Specialist who served as his immediate supervisor (S1) subjected him to disparate
treatment and harassment on the bases of race (African-American), disability (work-related
stress), and in reprisal for prior protected EEO activity by making racial and sexual comments
toward him between April and August of 2012, revoking his telecommuting privileges on
February 11, 2013, and refusing to accommodate his work restrictions after May 13, 2013.

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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Comments Attributed to S1

Complainant alleged that S1made comments of a racial and sexual nature toward him as
follows:

1. On April 13, 2012, S1 said, “it must be hard for fat people to have sex because they
are so big;”

2. On an unspecified date in June 2012, S1 referenced how “good another employee’s butt
looked in her jeans;”

3. On an unspecified date in August 2012, S1 used the letters “KKK” jokingly in the
office;

4. On August 20, 2012, S1 said to Complainant, “your beard looks nice, but it may not be
so good for your wife because depending on where your face is, it might scratch her.”

5. On August 23, 2012, S1 called him in a “rageful” voice over the speaker phone while
he was conducting Agency business with an attorney.

Investigative Report (IR) 134-35, 143-45. S1 denied making the statements in question. IR
212-16. As to the August 20th incident, S1 averred that she remembered complimenting
Complainant on how his beard looked but denied making any kind of sexual innuendo. IR
215. When asked to explain the incident that took place on August 23rd, S1 averred that she
merely requested that Complainant submit his timesheets. IR 215-16.

Revocation of Telecommuting Privileges

Complainant next alleged that S1 took away his telecommuting privileges. He averred that his
doctor had recommended that he be physically separated from S1 in order to ease the stress he
was under. He also averred that he had an agreement with the Agency under which he was
allowed to telecommute, and that by withdrawing his telecommuting privileges, S1 was
ordering him back into the same hostile environment that had given rise to the telecommuting
agreement in the first place. IR 169, 173. Complainant did provide medical documentation on
September 11, 2012, supporting his request that he either be allowed to work at home or on
site but outside S1’s physical presence. Complainant worked from home until February 8,
2013. S1 averred that she had observed a decline in Complainant’s performance that was
impacting the productivity of the work unit, and that Complainant needed to be present at the
office in order to obtain assistance from his peers. IR 159-63, 177, 218-19, 401-03, 436. S1
also stated that Complainant had a pending workers’ compensation claim during the time frame
in which he was allowed to telecommute, that on February 4, 2013, Complainant’s claim had
been denied because the Office of Workers’ Compensation had determined that management
did not cause him to suffer a work-related injury, and that she directed him to return to the
office after the denial. IR 264-74, 400, 404. The Territory Manager, S1’s immediate
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supervisor and Complainant’s second-level supervisor, also averred that Complainant’s
performance rating had fallen below the level at which telecommuting was permitted, but that
she and S1 had agreed to continue with the arrangement until the Office of Workers’
Compensation denied his claim. 194-95.

Work Restrictions

Complainant alleged that as of May 13, 2013, S1 would no longer accommodate his work
restrictions. IR 170, 174. Those restrictions essentially consisted of being physically
separated from S1 while he was in the office, as previously noted. In a memorandum
addressed to Complainant dated September 19, 2012, S1 stated that she had received medical
information from his physician indicating that he could work either from home or on site with
no direct supervision from or interaction with her. S1 further stated that she agreed to
communicate with Complainant via email as necessary to ensure that the workflow was
maintained and that the Agency’s mission was fulfilled. IR 179-80. In subsequent emails to
Complainant, S1 expressed her concerns regarding Complainant’s performance and his
submission of monthly reports. IR 182, 185.

In an email addressed to Complainant from S1’s supervisor, the Territory Manager informed
Complainant that his request to maintain his restrictions appeared to fall under the reasonable
accommodation process, and that she was providing him with the information and forms
necessary to initiate a request. Both the Territory Manager and S1 averred that they were not
aware that Complainant had requested a reasonable accommodation as of May 2013. IR 195,
199, 220, 409.2

Between February and May of 2013, Complainant had been working in the office, but had
been sequestered from S1 in accordance with his request. In a memorandum addressed to
Complainant dated May 13, 2013, S1 informed Complainant that he had received a rating of
“fails” in one of his critical job elements, which resulted in an overall performance rating of
unacceptable, and that as a result, S1’s intervention was necessary in order to assist
Complainant in raising his performance level to minimally successful. S1 notified
Complainant that communications between them could no longer be limited to emails and
written feedback, and that face-to-face conversations would be necessary in order to facilitate
the improvement of Complainant’s performance. IR 187.

Post-Investigation

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).

2 Complainant eventually did submit a formal reasonable accommodation request for the same
work arrangement that he had prior to May 13th. However, on August 20, 2013, S1 denied
Complainant’s request on the grounds that the accommodation was ineffective and the medical
documentation was inadequate. IR 410-11. This matter is not currently before us.
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In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

Harassment

Given the conflicting statements between S1 and Complainant as to whether S1 actually made
these comments, we will assume for the sake of argument that she did. We will also assume
that Complainant is alleging sexual harassment with respect to comments (1), (2), and (4).
Harassment of employees that would not occur but for their race or disability is unlawful if
sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998). To prevail on his harassment claim, Complainant must
prove, by a preponderance of the evidence, that because of his race or disability, he was
subjected to conduct so severe or pervasive that a reasonable person in her position would have
considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Where Complainant alleges reprisal as a basis, he must also prove that the Agency’s actions
were harmful to the point that they could dissuade a reasonable employee from making or
supporting a charge of discrimination. Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006). Only if Complainant satisfies his burden of proof with respect to all of
these elements, motive and either hostility or chilling effect, will the question of Agency
liability for harassment present itself. Annalee D. v. Social Security Admin., EEOC Appeal
No. 0120140956 (Nov. 23, 2016).

We will first address motive as it pertains to disability and reprisal in connection with the
comments that Complainant attributes to S1. When asked by the investigator why he believed
that his work-related stress and EEO activity were what caused S1 to utter those comments,
Complainant responded that his condition would not have occurred had it not been for S1’s
aggressive behavior toward him, that he had personally witnessed S1 get into arguments and
confrontations with other employees as well as himself, and that S1 had threatened other
employees and tried to sabotage their careers. IR 138, 148, 170. Beyond his own assertions,
however, Complainant has not presented any sworn statements from other witnesses or
documents that tend to show that S1 was motivated by considerations of retaliating against him
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for exercising his rights under Title VII and the Rehabilitation Act. We therefore find that
Complainant failed to establish the existence of a disability-based or retaliatory motive on the
part of S1 in connection with the any of the comments in question.

We now turn to the question of race discrimination. Complainant averred that he had
personally witnessed S1 making comments of this nature over the years to African Americans
exclusively. IR 136, 145-46. Three of Complainant’s coworkers, two black, one white, had
all corroborated some elements of his narrative. Coworker (1) (Black female) averred that
although she did not witness any of S1’s comments personally, she was present during a group
meeting on an unspecified date in 2012 at which she heard S1 say: “I wish all of you were like
[Complainant] because I can say whatever I like to him no matter what it is because he doesn’t
say anything back, he just takes it [and] I love it,” and averred that she was offended by this
remark. She also averred that she often heard S1 yell at other members of the work group. IR
462-65. Coworker (2) (white female) averred that she heard S1 make inappropriate comments
over the years, referring to one individual as a “retard” at a staff meeting, that she had
personally seen S1 criticize, berate, and belittle Complainant on several occasions, that S1
“had issues” with African-American employees, holding them to higher standards that
Caucasian employees, that the morale in the unit was very low because of S1, and that on one
occasion that S1 had been arrested for pointing a gun at a fellow manager. IR 467-72.
Coworker (3) (Black female) averred that she heard S1 utter the remark about Complainant’s
beard exactly as Complainant had described the remark, and that she saw Complainant shake
his head in disapproval. IR 483-84. As to the “rageful voice” incident, Coworker (3) averred
that although she could not remember the exact date, she had observed S1 yelling at
Complainant almost on a weekly basis, and that S1 treated Complainant and another Black
male staff member like “two year olds.” IR 484-86. The Territory Manager, S1’s first-line
supervisor, averred that one employee had come to her with allegations of being harassed by
S1, although she did not identify this individual. IR 194.

When viewed as a whole, the statements from these witnesses tend to establish the existence of
a racial motivation on the part of S1. Given that Coworker (3) had corroborated that S1 had
made comment (4), we also find, again for purposes of analysis, that S1 was motivated by
unlawful considerations of Complainant’s gender. With this in mind, we turn now to the
second prong of the harassment analysis, the issue of severity or pervasiveness.

It is well-settled within the Commission’s precedent that a single incident or group of isolated
incidents will generally not be regarded as discriminatory harassment unless the conduct is
severe. Irvin C. v. Dept. of State, EEOC Appeal No. 0120141173 (Aug. 29, 2016). The
Commission has found, however, that under certain circumstances, a single incident could be
severe or pervasive enough to give rise to a hostile environment in and of itself. See Trina C.
v. U.S. Postal Service, EEOC Appeal No. 0120142617 (Sept. 13, 2016) (male supervisor
grabbed female employee around the waist and kissed her on the neck); Woolf v. Dept. of
Energy, EEOC Appeal No. 0120083727 (Jun. 4, 2009), req. for recon. den. EEOC Request
No. 0520090560 (Aug. 21, 2009) (male coworker forced his thigh between female employee’s
legs, put his mouth to her ear, and told her how gorgeous she looked); Hayes v. U.S. Postal
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Service, EEOC appeal No. 01954703 (Jan. 23, 1998), req. for recon. den. EEOC Request No.
05980372 (Jun. 17, 1999) (male coworker stuck his tongue in female employee’s ear). The
Commission has likewise found that the use of a single racial epithet or slur in the workplace
could also constitute harassment. See Yabuki v. Dept. of the Army, EEOC Request No.
05920778 (June 4, 2993) (employee of Japanese descent the subject of a comment by non-
Japanese coworker that it was all [the employee’s fault] that the Japanese were taking over
American businesses).

In this case, we find that none of the comments attributable to S1, either singly or collectively,
are severe or pervasive enough to reach the threshold required to prove harassment. With
respect to comments (1), (2), and (3), Complainant has not presented any evidence concerning
the context in which the comments were allegedly made. Specifically, he has not shown that
any of these comments were directed at him personally or at African-Americans in general.
While comment (4) clearly was directed at Complainant, it was a single sexual innuendo that
was not of the level of severity to create a hostile environment. As to comment (5), the
comment itself amounted to no more than S1’s admonishment of Complainant for his failure to
submit his timesheets when S1 requested them. Routine work assignments, instructions, and
admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse
on a par with a racial epithet or otherwise engender a hostile work environment. Complainant
v. Dept. of State, EEOC Appeal No. 0120123299 (Feb. 25, 2013). We therefore find, as did
the Agency, that Complainant failed to establish that he was subjected to harassment by S1
because of his race, sex, disability, or previous EEO activity.

Terms and Conditions of Employment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his claim of disparate treatment in connection with
the removal of his telecommuting privileges, Complainant would have to prove, by a
preponderance of the evidence, that S1 was motivated by unlawful considerations of his race,
disability, or previous EEO activity when she decided to revoke his telecommuting privileges
on February 11, 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000).

In circumstantial-evidence cases such as this, Complainant can establish motive by presenting
evidence tending to show that the reason articulated by S1 for taking away his telecommuting
privileges was a pretext, i.e., not the real reason but rather a cover for discrimination. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802
(Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008).

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S1’s articulated reasons for revoking Complainant’s telecommuting privileges were that his
performance between September 2012 and February 2013 had declined to minimally
successful, that she had agreed to permit Complainant to telecommute while his workers’
compensation claim was pending, and that once that claim was denied, she felt that she no
longer had an obligation to keep the telecommuting arrangement in place. S1’s sworn affidavit
is corroborated by that of the Territory Manager, as well as the February 8th email to
Complainant in which S1 documents the reasons for her decision, particularly that returning to
the office environment would provide Complainant with better access to assistance he would
need in improving his performance than he would have received had he continued to work at
home. When asked by the EEO Investigator why he believed that his race, disability, and
previous EEO activity were factors in S1’s revocation of his telecommuting privileges, S1
responded in general terms that African-Americans were treated as inferior and unintelligent by
S1, that being forced to return to the office had caused a setback in his physical condition, and
that he was being subjected to a continuing violation. IR 169-70. Other than his own
assertions, however, he has not provided any sworn statements from other witnesses or
documents which contradict S1’s documented reasons for revoking his telework privileges.
We therefore find, as did the Agency, that Complainant failed to meet his burden of proof of
unlawful motivation on the part of S1 in connection with the revocation of his telecommuting
privileges. Consequently, it is not necessary to determine whether that decision on the part of
S1 constitutes an act of harassment. See Nicki D. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120133247 (Oct. 15, 2015) (if Complainant fails to establish the existence of
discriminatory intent, no further inquiry would be necessary as to whether the incidents
complained of rise to the level of harassment or constitute separate acts of discrimination under
disparate treatment theory).

Denial of Reasonable Accommodation

To the extent that Complainant claims that the Agency failed to reasonably accommodate him,
the Commission notes that that under the Commission's regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without
deciding that Complainant is a qualified individual with a disability.

The undisputed record shows that the Agency made attempts to accommodate Complainant.
After his workers’ compensation claim was denied, the Territory Manager emailed
Complainant the reasonable accommodation forms and instructions. IR 199. While the
documents from Complainant’s health care provider indicated a diagnosis of stress arising from
adverse effects of his work environment, there was no prognosis or any other information as to
whether Complainant’s condition was permanent or long-term. IR 152-55. According to the
Reasonable Accommodation Coordinator, Complainant was given several opportunities to
provide medical documentation to support his reasonable accommodation request, but as of
July 31, 2013, he had not done so. IR 493.

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Under the Commission's guidelines, an agency may request additional information when
presented with a request for reasonable accommodation in order to evaluate a complainant's
proposed accommodation in comparison to his current medical needs in order to determine
what accommodation would best serve the needs of the agency and complainant. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002, at question 6 (Oct. 17, 2002).
Moreover, when an individual's disability or need for reasonable accommodation is not
obvious, and he fails to provide reasonable documentation requested by the employer, the
employer will not be held liable for failure to provide the requested accommodation. Id.
Here, the record shows that Complainant failed to respond to requests for additional, more
specific documentation to assist in addressing Complainant’s condition. Therefore, the
Commission finds that Complainant has not established that the Agency failed to provide him
with a reasonable accommodation

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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

December 2, 2016
Date