0120182324
09-27-2018
Maynard G,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maynard G,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120182324
Agency No. IRS-18-0320-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 11, 2018, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Revenue Agent, 0512, GS-13 at the Agency's Internal Revenue Service facility in New York, New York.
On May 22, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of disability (PTSD and knees) and age when (1) on June 20, 2107, the Agency's management informed him that there was a complaint filed against him by a third party and believed the false accusations against Complainant; (2) on January 30, 2018, the Agency's management informed Complainant of additional information and allegations from the third party and requested Complainant provide his physical case files for review and come to a meeting, without sharing any information regarding the complaint from the third party with Complainant; (3) on February 6, 2018, the Agency's management required Complainant to explain why he needed to work on flex and continued to request Complainant produce the physical case files; (4) on February 8, 2018, the Agency's management scheduled a meeting and told Complainant to bring the physical case files; and (5) on February 14, 2018, the Agency management instructed support staff to arrange a date and time for Agency management to go over Complainant's case inventory.
Complainant asserts this series of events has caused him emotional stress. He suffers from post-traumatic stress disorder (PTSD) and osteoarthritis in both knees. He wears braces on both of his knees due to osteoarthritis. He alleges that he has informed the Agency's management that the files they are requesting that he physically transport fill two and a half file cabinet drawers. The Agency management is aware of his knee disability, including his wearing braces, but continues to request that he physically transport the case files to another building. Complainant has attempted to provide the files electronically, but the Agency management continues to require him to physically transport the case files. Complainant also alleges that the Agency's management does not require such a review the case inventory of other Agents. He alleges the Agency's harassment has been ongoing.
On June 11, 2018, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In so doing, the Agency found the issue was whether, based on his age (YOB: 1951) and disability, the Agency subjected Complainant to discrimination when, on or about February 15, 2018, Complainant's supervisor asked Complainant to meet in person with Complainant's supervisor and a territory manager to review a case and bring the case file with him; and informed Complainant that someone had complained about him, but refused to inform him of the nature of the complaint. The Agency found that being asked to attend a meeting to discuss a case and to bring the case file along to the meeting and being told that someone complained about him, even if true, does not result in present harms of losses to a term, condition, or privilege of employment for which there is a remedy. Thus, the Agency found Complainant was not "aggrieved" as defined in the regulations and, therefore, dismissed his claim.
The instant appeal followed. On appeal, Complainant asserts that the alleged discrimination and harassment has caused his PTSD symptoms to increase, requiring him to seek professional help from the U.S. Department of Veterans Affairs. He reiterates his assertion that no other employee reporting to his territory manager was required to have a review of his case inventory. He further explains that his case files are large and heavy and, given his knee disability and his wearing braces, it would be an unnecessary strain and health risk for him to physically transport the case files. He further alleges that he received an appraisal that was lower than the appraisals that he has received in the last 4 or 5 cycles, in reprisal for filing the current complaint. He typically would receive a cash award associated with his appraisal, but because of this lower appraisal, he will not be entitled to any cash award.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The Agency did not address Complainant's harassment allegations. As discussed above, Complainant alleged the Agency subjected him to ongoing harassment and discrimination, on the bases of disability and age, in a series of events. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Towards establishing his claim of harassment, Complainant alleged that the Agency's management has repeatedly requested he physically transport case files from one building to another, while knowing he has a knee disability requiring the use of braces on both legs. He asserts that his physically transporting the case files would impose a physical strain and health risk. He noted specific instances on January 30, 2018, February 6, 2018, and February 8, 2018 where Agency management requested he transport case files. We find these alleged incidents are sufficient, in conjunction with the allegation regarding Complainant being given a lower appraisal in reprisal for his filing the instant complaint, to rise to the level of actionable harassment.
Therefore, we reverse the Agency's dismissal of the complaint and remand it back for investigation and further processing. As redefined, the complaint alleges that the Agency subjected Complainant to harassment and discrimination on the bases of disability (PTSD and knees) and age when Complainant was subjected to ongoing harassment, including being requested to transport case files on January 30, 2018, February 6, 2018, and February 8, 2018; and (2) Complainant received a lower appraisal in reprisal for filing the instant claim. These allegations are sufficient to establish that Complainant is an "aggrieved employee" within the meaning of the regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
September 27, 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.
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