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

Equal Employment Opportunity Commission

Dec 7, 2016

0120142994 (E.E.O.C. Dec. 7, 2016)

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

Ileana R.,1
Complainant,

v.

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

Appeal No. 0120142994

Agency No. IRS-13-0430-F

DECISION

Complainant filed an appeal from the Agency’s July 21, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of 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 pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s
final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contact Service
Representative at the Agency’s facility in Kansas City, Missouri. On August 12, 2013,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
basis of her disability (multiple sclerosis) when:

1. beginning March 4, 2013, management issued her memoranda regarding her
attendance, timeliness of her work, failure to adhere to the phone schedule, and
unacceptable performance, and then issued her cumulative reviews after which she
was asked whether she would “resign or be terminated;”
2. management assigned her the additional duty of team editor;

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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3. management sent constant emails while she was working on the phones, failed to
accurately and expeditiously answer her assignment-related questions, and refused
to answer her questions during team meetings;
4. management officials placed documents on her desk, and touched other documents
on her desk, despite her request that nothing on her desk be touched because of her
need to keep her desk organized; and
5. her team lead ordered her to return to phone duty when she did not begin her leave
at precisely 1:30 pm as designated in her leave request.

Complainant also alleged that she was denied a reasonable accommodation. At the conclusion
of the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). 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 her to discrimination as
alleged. On appeal, Complainant reiterates her contention that she was subjected to unlawful
harassment and disability discrimination and that the Agency failed to provide her with a
reasonable accommodation.

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”).

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
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Here, we find that assuming, arguendo, Complainant established a prima facie case of
disability discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. The record shows that Complainant was hired on January 8, 2013, and
began her probationary period in the position of Contact Service Representative. With respect
to claim (1), a review of the memos issued to Complainant by management shows that they
were instructional and/or intended to correct performance errors. We do not find any of the
memos at issue to be harassing or otherwise issued for discriminatory reasons. In so finding,
we note that Complainant was a new hire in her probationary period and that it was
management’s responsibility to train her in her work duties and in Agency policies and
procedures. We find that a review of the record shows that management was acting in
accordance with those duties when issuing Complainant the memos in question. Additionally,
the record shows that Complainant’s performance in the areas of customer accuracy and
technical knowledge was not meeting expectations. Specifically, Complainant’s supervisor (S1)
states that Complainant’s unacceptable performance was first discussed with her on April 18,
2013, and that she and the team lead (TL) proceeded to do extra reviews of Complainant’s
work in order to help Complainant succeed in the position. S1 also states that Complainant’s
performance deficiencies were regularly addressed with her in performance reviews and
individual meetings. When Complainant’s performance failed to improve to acceptable levels,
she was issued a notice of termination, effective July 12, 2013. We find that Complainant has
not shown that the Agency’s articulated reasons for its actions were a pretext for unlawful
disability discrimination.

With respect to claim (2), the record shows that Complainant accepted the voluntary position
of team editor, but that S1 removed this additional duty on April 29, 2013, due to
Complainant’s failing job performance. As to claim (3), while the record does not support
Complainant’s contention that she received more emails from management than coworkers or
that these emails were sent in order to harass her, a review of these emails does show that
Complainant was argumentative and combative in her exchanges with management officials.
Further, Complainant’s coworkers state in affidavits that Complainant’s questions were
answered by management officials during team meetings, “even when most of the time the
questions had nothing to do with what [they] were discussing” or when the questions were
asked “in a confusing, complicated manner that … left all the team members confused as
well.”

With respect to claim (4), S1 denies ever moving any documents on Complainant’s desk and
states that when Complainant explained that she needed to have her desk in a particular order,
S1 agreed that she would only place urgent documents on her desk and that she would leave
the documents on Complainant’s chair if she was not at her desk. The TL also denies that she
ever moved anything on Complainant’s desk and that if an employee was not at their desk
when she needed to tell them something she would leave a sticky note. As to claim (5), the TL
stated in her affidavit that on the date at issue, she was unaware that Complainant was
scheduled to take leave and that the daily schedule showed that Complainant was assigned to
work the phones. The TL states because of this misunderstanding she was unaware of
Complainant’s leave status, and because Complainant did not inform her that she was taking
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leave, the TL instructed her to return to phone duty. The record shows, however, that once the
confusion was resolved, Complainant was permitted to take leave without further delay. We do
not find that these legitimate, nondiscriminatory reasons are a pretext for unlawful
discrimination.

Next, insofar as Complainant is alleging that the claims addressed above constitute harassment,
the Commission finds that since she failed to refute the legitimate, nondiscriminatory reasons
proffered by the Agency for its actions, she necessarily also failed to establish that such actions
were taken on the basis of her membership in the protected classes. Accordingly, Complainant
failed to establish that she was subjected to a discriminatory hostile work environment. See
Bennett v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000).
Finally, under the Commission’s regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise qualified
individual with a disability unless the Agency can show that accommodation would cause an
undue hardship. 29 C.F.R. § 1630.9. In order to establish that Complainant was denied a
reasonable accommodation, Complainant must show that: (1) she is an “individual with a
disability,” as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a
disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the agency failed to provide a
reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17,
2002) (Reasonable Accommodation Guidance).

Assuming, arguendo, that Complainant is a qualified individual with a disability, we find that
she has not shown that the Agency denied her a reasonable accommodation. Specifically, the
record shows that Complainant first requested a reasonable accommodation on March 12,
2013, stating that she needed silence and additional time to take exams. The record shows that
this request was approved on March 29, 2013, and Complainant does not allege that she was
denied this accommodation while test taking. Complainant also made a second official request
for accommodation on June 11, 2013. The record shows that this request was being processed
at the time of Complainant’s termination from employment and was therefore administratively
closed as of July 12, 2013. We find that another instance cited by Complainant was not an
official request for accommodation and we do not find the Agency should have assumed it was
such a request since no disability was claimed when making this other request. Furthermore,
there is no evidence that Complainant was required to, or actually did, work beyond or in
violation of any medical restrictions. Accordingly, we find that Complainant has not shown
that the Agency violated the Rehabilitation Act or denied her a reasonable accommodation.
Additionally, we find that Complainant has not shown that the performance issues which lead
to her termination were related to her disability or need for an accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.
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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.
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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 7, 2016
Date