Jesse S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120172526 (E.E.O.C. Nov. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jesse S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120172526 Agency No. IRS-16-0698-F DECISION On July 22, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 22, 2017, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as Management Program Analyst, GS-343-12, in the Agency’s Human Capital Office (HCO), Strategy and Finance in Washington, D.C. On October 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), and reprisal (prior protected EEO activity) when: (1) on July 20, 2016, during a staff meeting, her manager (S1) discussed her work in the presence of her co-workers, even though she had asked the manager to conduct such discussions privately; (2) on June 29, 2016, she received an annual performance appraisal rating of 4.2 rather than the higher rating she thought she deserved, and the appraisal narrative incorrectly stated that she volunteered for certain projects that were assigned to her without her having volunteered; (3) on unspecified dates, she was not informed of scheduled 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. 0120172526 2 training; (4) on August 23, 2016, after she began receiving large numbers of external emails in her office mailbox that interfered with her work assignments, management refused to take action to stop the emails from being routed to her; (5) she has not received her Critical Job Elements (CJEs) and as a GS-12, she is expected to perform the same duties as the GS-13 and GS-14 Analysts on the team and is working under a position description (PD) that does not match the work she performs; (6) on unspecified dates, she has been excluded from team meetings about team work assignments; and (7) on unspecified dates, she has received work assignments requiring her to conduct Information Technology web assignments for which she has no specialized training.2 After 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 EEOC Administrative Judge. 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. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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”). Disparate Treatment To prevail in a disparate-treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. Corp. 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, 441 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2 The Agency dismissed allegations regarding matters that occurred during mediation on the basis that such claims fail to state a claim, pursuant to 29 CFR §1614.107(a)(1). The Commission finds no basis to disturb the Agency’s dismissal of these claims. 0120172526 3 Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume that Complainant established a prima facie case of discrimination on the alleged bases. We find, however, that Complainant failed to show that her allegations were true or that management's legitimate articulated reasons for its actions were pretext for discrimination or reprisal. Specifically, with respect to the July 20, 2016 staff meeting (claim (1)) in which her manager allegedly discussed her work improperly in front of her co-workers, S1 and Complainant’s second- line supervisor (S2) explained that the team meeting at issue occurred soon after the team lead had retired and the staff needed to redistribute work and to discuss new workflow, guidance, and responsibilities. S2 explained that everyone's work was normally discussed to ensure good staff communication. We further agree that Complainant failed to show that S1’s discussion of her work during the staff meeting was inappropriate or unreasonably singled her out. As to claim (2), we also agree with the Agency that Complainant failed to show that the 4.2 Exceeds Fully Successful rating she received was unjustified. S1 and S2 explained that the 4.2 rating was “very generous” given how much of the year Complainant was in training and moving from one team to another. S2 documented how despite being moved to the Communications teams at her own request, she expressed dissatisfaction with the assignment and chose to be transferred to the Reporting and Performance Management Branch in early July 2015 for a 120-day detail. Then, at her request, she cut short the detail to return to the Communications team in August 2015, to then complain that her duties were not properly defined and she was not properly trained. Management presented substantial evidence indicating that great effort was expended in seeking to accommodate Complainant’s work preferences and in ensuring she was properly trained and received job aides to help her perform her duties. These efforts support management's contention that Complainant was receiving too much help to deserve the highest rating on her performance appraisal. Management also explained that the reference to Complainant “volunteering” for certain work in her appraisal was an innocent effort to put a positive spin on Complainant’s work and Complainant failed to show that the reference was meant to harm her in any way. Regarding claim (3), the evidence shows that Complainant was not informed of a training course in February 2016. However, S2 explained that this was an innocent oversight due to Complainant switching teams. The evidence shows that once Complainant raised the issue of the missed training, she was immediately scheduled for one-on-one training to make it up. Complainant did not present evidence that would indicate that any failure to inform her of training was intentional or was more than a one-time occurrence. 0120172526 4 Regarding claim (4), Complainant failed to show that her complaints regarding the number of external emails that she had to respond to was anything more than the normal work process for a program that she had signed up for and the “large number” of emails of which she was complaining worked out to approximately three emails per hour. In addition, we note that the evidence in record shows that once Complainant complained about the program, S1 and S2 quickly instructed the program manager (PM) to remove Complainant from the email distribution list. In addition, the record shows that PM was in charge of the program at issue, and there is no allegation or evidence that PM sought to discriminate against Complainant. With regard to Complainant’s allegation that she was assigned GS-13 and GS-14 level duties (claim (5)), management explained that Complainant was not asked to perform the more technical work performed by the higher-graded team members such as web site and URL development. In addition, the record shows that if Complainant felt she could not perform certain work, she was told to forward it to her higher-level colleagues. Regarding the allegation that Complainant did not receive Critical Job Elements (CJEs), management explained that she has been working under the same CJEs since February 2014, and that the development of new CJEs required stability and acceptance on the employee's part of the work performed, which Complainant did not exhibit due to her constant dissatisfaction with whatever work process or training she received. S1 and S2 explained that they checked with HCO PD staff to see if Complainant's PD was appropriate. The staff responded it essentially was appropriate and that it cannot cover everything, but that it generally covered her duties. Complainant did not rebut these explanations to show that she was intentionally not given CJEs to cause her to fail, or that her assignments were improper. . Regarding claim (6), management officials asserted that Complainant has never been intentionally excluded from meetings. Management officials further affirmed that to the extent Complainant may not have received one meeting invitation, such one-time failure was inadvertent. Management explained that there had been times when Complainant missed meetings due to her own personal conflicts. Aside from Complainant’s bare uncorroborated assertions, the record is devoid of evidence of pretext or that any responsible management official held discriminatory or retaliatory animus.3 Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 3 We note that Complainant failed to present any evidence that the alleged actions had any nexus to her prior EEO complaints from 1997, 2003, and 2008, none of which involved the named managers. 0120172526 5 CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120172526 6 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 November 8, 2018 Date Copy with citationCopy as parenthetical citation