Max S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionApr 10, 20180120160607 (E.E.O.C. Apr. 10, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Max S.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120160607 Agency No. IRS-14-0474-F DECISION On November 25, 2015, 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 October 23, 2015, 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. 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 a Management and Program Analyst, GS-343-13, with the Agency’s Office of Professional Responsibility (OPR), Headquarters located in Washington, D.C. On August 5, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Puerto Rican),2 national origin (Puerto Rican), and reprisal (prior protected EEO activity) when: (1) on June 19, 2014, he was issued an unfair mid-year evaluation; 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 We note that Puerto Rican is more accurately described as a national origin. 0120160607 2 (2) on September 9, 2014, his manager (S1) (African-American) threatened him by telling him that he was “going to suffer” if he did not follow her instructions; (3) on November 13, 2014, S1 charged him with Absence Without Leave (AWOL) for tardiness; (4) on September 16, 2014, S1 directed him to provide information that he believes was “against the rules;” and (5) on March 17, 2015, S1 asked him how long it took for him to “work cases.” Complainant also initially raised two claims regarding an AWOL charge on November 4, 2014, because of tardiness, and an annual appraisal on October 30, 2014. Both claims were the subject of grievances filed on behalf of Complainant by his union on November 6 and November 19, 2014, respectively. We find that the Agency’s dismissal of these two claims in accordance with 29 C.F.R. § 1614.107(a)(4) (i.e., claims that were raised in a negotiated grievance procedure) was proper. Complainant also raised a third claim alleging that in the element of “Business Results” on his Leadership Succession Review issued on February 27, 2014, he was rated “Ready Now” on the “Employee” level rather than on the “Front Line Manager” level based on his prior management experience. To the extent that Complainant raises a discrete act, we find that the Agency’s dismissal of this claim in accordance with 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact beyond 45 days was appropriate since his initial EEO contact occurred on May 30, 2014 (i.e., 92 days after the alleged incident).3 After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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 3 However, we review the facts surrounding this claim as it pertains to Complainant’s harassment claim and as set forth below, conclude that Complainant has not presented sufficient evidence to support a finding of a hostile work environment. 0120160607 3 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 such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We agree with the Agency in concluding that Complainant failed to establish by a preponderance of the evidence that the legitimate, non-discriminatory reasons articulated by S1 (and corroborated by other management officials) for the alleged employment actions were pretext or otherwise motivated by discriminatory/retaliatory animus. Specifically, as the Agency notes in its final decision, the record shows the following. Claim 1 - Mid-Year Evaluation The record shows that Complainant claims that he was subject to harassment and/or retaliation when on June 19, 2014, he was issued an unfair mid-year evaluation. S1 explained that she found errors and deficiencies in 18 cases she reviewed for Complainant’s mid-year evaluation. The record also shows that Complainant received the same criticism and score on his prior year’s appraisal from a different supervisor. Claim 2 – Threat Complainant claims that on September 9, 2014, he was subjected to harassment and/or retaliation when S1 allegedly threatened him. S1 denies that she threatened Complainant in any manner. However, she testified that she did tell Complainant that if she had to repeatedly give him the same instructions and saw no improvement in his work product, the lack of improvement would be reflected in his appraisal. The record also indicates that Complainant’s allegation regarding the alleged threat was investigated by the Agency at the time of the incident no evidence was produced to corroborate Complainant’s allegation. Claim 3 – AWOL Complainant asserts that on November 13, 2014, he was subjected to harassment and/or retaliation when S1 charged him with AWOL for tardiness. The record shows that Complainant was repeatedly late to work. S1 explained that she was instructed by her manager (S2) and the 0120160607 4 Deputy Director (S3) to issue AWOLs to Complainant or anyone else who was late. The record also shows that S1 gave Complainant numerous warnings that she would have to start issuing AWOLs for tardiness prior to implementing her supervisors’ instructions. The record also shows that even S1 was charged AWOL for tardiness. Claim 4 – Inappropriate Instruction from S1 Complainant asserts that on September 16, 2014, he was subjected to harassment and/or retaliation when S1 directed him to provide information that he believed was “against the rules.” Specifically, Complainant asserts that S1 asked him to access and work on cases that were not assigned to him and were instead closed cases that had been assigned to other employees. Complainant stated that by accessing accounts that are not assigned to him, he could be charged with Unauthorized Access of Taxpayer Accounts (UNAX), which could lead to termination of his employment. S1 explained that she asked Complainant to retrieve information for cases that were not assigned to him because it was needed by team members who did not have access to the information. She further explained that Complainant was not committing a UNAX violation because he had a legitimate business reason to obtain the information. Claim 5 - Question from S1 Complainant claims that he was subjected to harassment and/or retaliation when S1 asked him how long it took him to work on cases which he alleges was prohibited by the union agreement. S1 states that she indeed asked Complainant this question which she asserts was appropriate and legitimate because she planned to sit with him as he processed one of his cases and wanted to estimate how much time she needed to allot for the session. S1 further explained that Complainant was likely attempting to reference the portion of the union agreement prohibiting her from telling Complainant that he had to process X number of cases in Y amount of time which she had not done. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). We find that Complainant failed to present sufficient evidence to show that the Agency’s actions were severe or pervasive enough to establish a hostile work environment based on his protected classes. We note that two of Complainant’s co-workers provided support for Complainant’s assertion of bias by management officials against “non-Black minority” employees and employees engaging in protected EEO activity.4 However, we agree with the 4 One of Complainant’s co-workers (C1) (Asian) stated that she believes she was subjected to a hostile working environment by S1, and that S1 has created a hostile environment for non-black minorities. C1 also noted that S1 said to her “you will suffer” if she (C1) continued to put S1 on speaker phone when they had phone conversations. Another co-worker (C2) (African-American) testified that he believes Complainant was subjected to harassment by the managers in place 0120160607 5 Agency that neither witness provided sufficient evidence that management discriminated against Complainant with respect to the claims herein. The preponderance of the evidence establishes that conflicts between S1 and Complainant stemmed from Complainant’s failure to follow S1’s work directives and expectations. 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 which concludes that Complainant failed to establish his claims of discrimination and retaliation as alleged. 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 prior to S1 and S2. Four other co-workers testified that they have not experienced a hostile working environment while working for S1. 0120160607 6 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 April 10, 2018 Date Copy with citationCopy as parenthetical citation