Margaret L.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120171450 (E.E.O.C. Dec. 4, 2018)

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

Margaret L.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120171450

Hearing Nos. 510-2014-00382X
510-2016-00176X

Agency Nos. IRS-13-0518-F
IRS-15-0931-F

DECISION

On March 9, 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
December 21, 2016,2 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. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency discriminated against, and subjected Complainant to harassment, based on
her age, disability, race, sex, and in reprisal for protected EEO activity.

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 stated that she received the Agency’s final decision on February 9, 2017.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Tax Compliance
Officer (TCO) at the Agency’s Small Business/Self Employed Division in West Palm Beach,
Florida.

On unspecified dates beginning in January 2012, Complainant stated that her first line supervisor
(S1) (age 46, female, white, unknown disability status, unknown prior EEO activity) stated to her,
“I don’t think you have skills to do this job,” and “a good TCO would have.” Report of
Investigation for Complaint 1 (ROI-1) at pg. 89. In April 2012, Complainant was in a van with S1
discussing government time for training. Complainant stated that the next day, S1 stated that she
was “forbidden from talking about work in the van,” because S1 felt put on the spot in front of a
union representative. ROI-1 at pg. 91. On July 20, 2012, Complainant requested to work four hours
of credit hours. S1 denied her request, and stated that they needed to meet for S1 to gain a better
understanding of why Complainant was not getting some of her work completed in a 40-hour
week. S1 added that she was going to assist Complainant with “Workload Management.” ROI-1
at pg. 166.

On September 11, 2012, Complainant requested a reasonable accommodation. Her request
included additional time for perform tasks, the ability to work in another area (telework); and
ability to adjust working environment. ROI-1 at pgs. 127-128, 191.3

On January 13, 2013, Complainant stated that S1 called her, and said that Complainant should be
able to work that afternoon because a coworker (CW1) (age 36, Black, male, disability, unknown
prior EEO activity) was not there singing. ROI-1 at pg. 93. On January 23, 2013, S1 emailed
Complainant informing her that she would post signs stating, “Please be Quiet – Work Area for
TCOs” near the door to the hallway, and the door near the mailroom. S1 also asked if she could
order a noise cancellation headset for Complainant. ROI-1 at pg. 188.

On February 19, 2013, S1 emailed Complainant a list of granted reasonable accommodations,
including a noise-cancellation headset; a “flexi-time” telework schedule; and the ability to work
credit hours. ROI-1 at pg. 565. On February 21, 2013, Complainant identified a noise cancellation
headset costing $299. ROI-1 at pg. 567. On February 26, 2013, S1 emailed Complainant stating
that they needed to discuss her requested noise cancellation headset; S1 followed-up on March 6,
2013, because Complainant did not respond to her email. ROI-1 at pg. 570.

On March 20, 2013, Complainant met with S1, to discuss her reasonable accommodation request.
Complainant stated that S1 would only allow her 12 hours of telework per week; and would not
purchase the noise cancellation headset that Complainant identified because of the cost. ROI-1 at
pg. 95.

3 The processing of Complainant’s reasonable accommodation requested experienced delays due
to an inability to contact her physician. The medical documentation was received on January 7,
2013. ROI 1 at pgs. 559, 605.
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Also on March 20, 2013, S1 emailed Complainant to confirm that her telework hours were limited
to 12 hours per week. On March 21, 2013, S1 sent an email stating that she misunderstood the
union contract, and would approve Complainant’s telework, in accordance with the relevant union
contract sections. ROI-1 at pgs. 159-160.

On April 29, 2013, S1 approached Complainant because the Reasonable Accommodation
Coordinator (RAC) informed her that Complainant called RAC’s manager. Complainant stated
that she informed S1 that she would get her own noise cancellation headset because she felt that
there were too many restrictions. Complainant also stated that S1 asked her why she was not
teleworking, and that she would inform S1 when she wanted to start teleworking. ROI-1 at pg.
162. On April 30, 2013, S1 emailed Complainant stating that she found a more reasonably priced
option with similar features, and S1 requested that Complainant respond by May 3, 2013, if she
wanted that headset. ROI-1 at pg. 202. Also on April 30, 2013, S1 sent an email to everyone on
the team asking that they be considerate about conversations/radio levels in the office. ROI-1 at
pg. 190. On May 6, 2013, S1 emailed Complainant stating that since she did not respond to S1’s
earlier email, she was denying her request for the noise cancellation headset. ROI-1 at pg. 202. On
July 24, 2013, Complainant received a decision denying her requested accommodations, and
offering her an alternative accommodation of a noise cancellation headset; the decision noted that
Complainant did not accept the alternative accommodation. Complainant alleged that S1 identified
a cheaper headset, but it was not compatible with her phone. ROI-1 at pgs. 30-32, 105.

In May 2013, Complainant stated that she was repeatedly denied the ability to work credit hours.
ROI-1 at pg. 99. Also in May 2013, Complainant alleged that she was given a higher caseload, and
that her work was held to a higher standard, as compared to a coworker (CW2) (age 39, white,
female, unknown disability status, unknown prior EEO activity). ROI-1 at pg. 101. In July 2013,
S1 posted two “Please be quiet” signs by her cubicle. ROI-1 at pg. 103. On August 16, and
September 19, 2013, Complainant was off-duty, and S1 attempted to contact her through
FaceTime. ROI-1 at pg. 107.

On October 7, 2014, Complainant stated that her inventory was increased, following a group
meeting during which she was accused of stealing other TCO’s dailies for use in her EEO
complaint. Complainant stated that the newly assigned work increased her inventory levels past
the National Guidelines. Report of Investigation for Complaint 2 (ROI-2) at pgs. 68-69. On
October 15, 2014, S1 emailed Complainant asking if she planned to schedule any telework in the
near future; she noted that her Enterprise Remote Access Project (ERAP) account had been
inactive for “quite some time.”4 ROI-2 at pg. 84. On January 6, 2015, S1 denied Complainant’s
access to ERAP. ROI-2 at pgs. 71,85.

4 Employees utilize the ERAP system when teleworking.
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EEO Complaints

On August 30, 2013, Complainant filed an EEO complaint (Agency No. IRS-13-0518-F,
Complaint 1) alleging that the Agency discriminated against, and harassed her on the bases of race
(Caucasian), sex (female), disability (post-traumatic stress disorder, anxiety, panic attacks), age
(53), and in reprisal for prior protected EEO activity under Title VII when:

1. from January to July 21, 2012, S1 led her to believe that she could lose her job by
making comments such as, “you do not have the skills to do this job,” and “a good
TCO would have”;
2. In April 2012, S1 told her that she was forbidden to talk about work while traveling
in a government-supported van;
3. On January 13, 2013, S1 made an insensitive remark about her being able to work
in the afternoon because CW1 would not be there singing;
4. Beginning on March 20, 2013, and continuing, she was limited to only 12 hours of
telework per week;
5. On April 29, 2013, S1 yelled at her because she contacted RAC’s manager;
6. In May 2013, she was denied the opportunity to work credit hours;
7. In May 2013, she was given a higher caseload, and her work product was held to a
higher standard, as compared to CW2;
8. On or about July 2013, S1 posted two “Please be Quiet” signs near her cubicle, to
let people know that it was Complainant who wanted the noise levels reduced;5
9. On July 24, 2013, her reasonable accommodation request for a noise cancellation
headset was denied; and
10. On August 16, 2013, and September 19, 2013, S1 attempted to contact her through
FaceTime, while she was off-duty.

On March 17, 2015, Complainant filed a second EEO complaint (Agency No. IRS-15-0931-F,
Complaint 2) alleging that the Agency discriminated against her based on her disability, and in
reprisal for protected EEO activity when:

11. On October 6, or 7, 2014, after being accused of stealing other TCO’s dailies and
using that information for her EEO complainant, her case inventory level was
increased by 14%, and was increased again after a conference call with an EEOC
Administrative Judge (AJ); and
12. On January 6, 2015, her access to ERAP was denied, which meant that she could
not telework, despite having a reasonable accommodation in place.

At the conclusion of the investigation, the Agency provided Complainant with a copies of the
reports of investigation and notice of her right to request a hearing before an EEOC AJ.

5 Complainant later corrected that this incident occurred on January 25, 2013. ROI 1 at pg. 120.
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Complainant timely requested hearings, but subsequently withdrew her hearing requests.
Consequently, the Agency issued a consolidated 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.

The Agency did not include a prima facie case analysis because the management officials
articulated legitimate, nondiscriminatory reasons for their actions. For claim 9, the Agency
assumed, for the purposes of their decision, that Complainant was a qualified individual with a
disability. S1 stated that Complainant requested a headset costing $299; and when she sent
Complainant a link to another cheaper pair, Complainant did not respond and later informed S1
that her son purchased her a headset. The Agency concluded that the management officials did not
fail to provide her with a reasonable accommodation because they offered her a reasonable
accommodation, and Complainant did not accept or engage in further interaction about an
appropriate headset.

Regarding claims 1 and 2, S1 denied saying anything to imply that Complainant could lose her job
based on her performance, and denied instructing her that she could not talk about work while in
their commuter van. For claim 3, S1 stated that Complainant complained about CW1’s singing,
and she reminded CW1, and the other team members, to be considerate of others in terms of noise
in the workplace.

With regards to claim 4, S1 stated that she initially restricted Complainant to teleworking twelve
hours per week based on her misunderstanding of the union contract. She stated that when she was
informed of her mistake, she approved Complainant’s telework, in accordance with the contract.
For claim 5, S1 denied yelling at Complainant, and stated that she inquired as to why Complainant
contacted RAC’s manager when she had not responded to S1’s email about a less expensive
headset.

Regarding claim 6, S1 stated that she informed Complainant that they needed to discuss why
Complainant could not complete her work in a 40-hour work week, and that she wanted to assist
her with her workload management. For claim 7, S1 stated that all TCOs are expected to start and
close 4-6 cases per week, and that Complainant did not always move her cases in a timely manner.
S1 stated that CW2 may have had fewer cases than Complainant because she was assigned other
tasks to assist with supervisory responsibilities. With regards to claim 8, S1 stated that she posted
the signs to try to help Complainant avoid anxiety attacks.

For claim 10, S1 stated that she never intentionally tried to contact Complainant through
FaceTime, but that she accidentally “pocket-dialed” her. With regards to claim 11, S1 stated that
Complainant’s inventory levels were increased in a routine fashion because her “Action Code 00”
cases were low. For claim 12, S2 stated that ERAP access expires when it has not used for
approximately 45-days. S1 added that when she asked if Complainant had future plans to telework,
she did not respond, so she denied the ERAP request.

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The Agency then found that Complainant had not proffered any persuasive evidence that the
management’s reasons were pretext for discrimination, and concluded that Complainant was not
discriminated against, nor subjected to unlawful harassment.

Complainant filed the instant appeal, and submitted a brief in support of her appeal. The Agency
did not respond to Complainant’s appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant states that she was offering facts that were either omitted or
misrepresented by the Agency. For example, Complainant states that S1 denied her the ability to
work credit hours on July 20, 2013, despite the approval of credit hours as a reasonable
accommodation; and that S1 failed to instruct CW1 not to sing. Additionally, with regards to her
reasonable accommodation request, Complainant argues that she attempted to engage in the
interactive process, but that management did not act in good faith.

ANALYSIS AND FINDINGS

Standard of Review

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

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once complainant
has established a prima facie case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the agency is successful, the burden reverts back to complainant to demonstrate
by a preponderance of the evidence that the agency’s reason(s) for its action was a pretext for
discrimination.
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At all times, complainant retains the burden of persuasion, and it is her obligation to show by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716
(1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her age, disability, race, sex, and in reprisal for protected EEO activity, we find that the
management officials proffered legitimate, nondiscriminatory reasons for their actions, as
discussed above.

We find that Complainant has not shown that the reasons are pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. In this case,
Complainant made bare assertions, which are insufficient to prove pretext. On appeal,
Complainant offers additional statements, but has not provided evidence showing that the
management officials are inconsistent or not believable. With regards to Complainant’s claim that
S1 denied her credit hours on July 20, 2013, we find that the record shows that this denial occurred
on July 20, 2012, prior to her grant of telework as a reasonable accommodation. ROI-1 at pg. 166.
Additionally, while S1 did not specifically instruct CW1 to refrain from singing in the office, she
emailed everyone asking them to be considerate and keep the noise level down. Accordingly, we
find that Complainant has not shown that the Agency discriminated against her based on her age,
disability, race, sex, or in reprisal for protected EEO activity.

Harassment

As discussed above, we found that Complainant did not establish a case of discrimination on any
of her alleged bases. Further, we conclude that a case of harassment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the agency were
motivated by her protected bases. See Oakley v. United States Postal Service, EEOC Appeal No.
01982923 (September 21, 2000).

Reasonable Accommodation

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.
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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).

For the purposes of this decision, we will assume that Complainant is a qualified individual with
a disability. We find that the Agency offered to provide Complainant with a reasonable
accommodation in the form of a noise cancellation headset, which she declined. We note that while
the Rehabilitation Act provides that qualified individuals with a disability be granted an effective
reasonable accommodation, it does not entitle them to the accommodation of their choice. See
Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, Question 9 (rev. Oct. 17, 2002). Complainant’s choice was
considered too expensive, and the Agency identified an alternative headset which was cheaper.
Complainant claimed that it was not compatible with her phone, and with the necessary add-ons,
that item would only be slightly less expensive than her choice. However, Complainant has not
shown that Agency-identified noise cancellation headset would be ineffective as an
accommodation.

Complainant argues that she attempted to engage in the interactive process, but that the
management officials did not act in good faith. However, we find that the record does not support
this assertion. S1 repeatedly tried to engage with Complainant about the noise cancellation headset,
but Complainant did not respond to her. Further, in an attempt to quiet Complainant’s work area,
S1 emailed the team asking them to be considerate of their noise levels, and put up signs asking
for quiet. Complainant argues that S1 put the signs up without her consent, but the record shows
that S1 emailed Complainant informing her that she planned to post the signs, giving Complainant
an opportunity to respond. We do not find that the management officials failed to act in good faith
when responding to Complainant’s reasonable accommodation request. Accordingly, we find that
the Agency did not discriminate against Complainant because it did not fail to provide her with a
reasonable accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
was not discriminated against, nor subjected to harassment, based on her age, disability, race, sex,
or in reprisal for protected EEO activity.

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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.

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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 4, 2018
Date