0120181424
06-12-2018
Kathey Z,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kathey Z,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120181424
Agency No. IRS180101F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 8, 2018, dismissal of her complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as an OA Secretary, GS-5, at the Agency's Examination Operations, Field Examination facility in Farmers Branch, Texas.
On February 1, 2018, Complainant filed a formal complaint alleging she was subjected to a hostile work environment by the Agency on the bases of religion (Jewish) and disability (mental, learning disability) when:2
1. On unspecified dates, Coworkers made anti-Semitic and belittling comments about her inability to understand work-related requests, and
2. On October 30, 2017, Complainant received a letter stating that charges made against her were unsubstantiated (i.e. clearing her of any purported wrongdoing).
The Agency dismissed Complainant's complaint for failure to state a claim in accordance with 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are insufficient to state a claim of a hostile work environment.
Claim 1 alleges bullying and anti-Semitic comments, but fails to establish the necessary severity and pervasiveness to constitute a hostile work environment. We note that Complainant's formal complaint alludes to multiple additional allegations of coworker harassment related to her learning disability and her religious accommodation during Jewish holidays. She also describes a "witch hunt" by anonymous coworkers, falsely reporting her for violations to her time and attendance records. However, Complainant provides minimal detail, instead dedicating most her appellate argument and a substantial portion of her Formal Complaint to describing a similar incident that occurred in 2012, which she acknowledges is time-barred from being reviewed as a discrimination complaint.
If shown to be severe and pervasive, bullying and anti-Semitic comments can state a claim of hostile work environment. Here, we lack the necessary information that would indicate the level of the severity and pervasiveness of the alleged harassment. For instance, Complainant has not provided us with the dates of the alleged incidents, how often they occurred, what specifically was said or done that caused Complainant to feel bullied or harassed, the identity (if known) of the alleged harassers, and when Management was notified.3 Hence Claim 1 lacks sufficient evidence to support claim of Harassment.
Likewise, for Claim 2, Complainant fails to provide sufficient details to state a claim. It is unclear how the October 30, 2017 letter could cause Complainant to become "aggrieved." She has not refuted her first and second level supervisors' statements for the record that the letter was never placed in her file and will not impact her record with regard to promotions. Moreover, the letter does not constitute a disciplinary action. Based on the information before us, we find Claim 2 does not describe harassment sufficiently severe and pervasive as to state a claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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. 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
June 12, 2018
__________________
Date
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.
2 Complainant initially included an additional claim that in 2012, "coworkers filed a complaint against [her] with the Treasury Inspector General for Tax Administrator," but on appeal she explained that this was intended as background information, and accepted she the Agency's dismissal of the matter as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2) and 1614.105(a)(1).
3 We note that Complainant's argument improperly references statements allegedly made in the course of mediation. Because confidentiality is essential to the success of all ADR proceedings, the Commission will not consider any statements made during mediation in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 � II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of 1996 ("ADRA") codified as 5 U.S.C. �574.
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