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

Equal Employment Opportunity Commission

Jul 24, 2019

0120182509 (E.E.O.C. Jul. 24, 2019)

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

Queen L.,1
Complainant,

v.

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

Appeal No. 0120182509
Hearing No. 410-2016-00525X
Agency No. IRS-16-0078-F

DECISION

On July 10, 2018, 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 28, 2018, final order 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 order.
ISSUE PRESENTED

Whether there is substantial evidence in the record to support the Equal Employment Opportunity
Commission Administrative Judge’s determination after a hearing that Complainant was not
subjected to discrimination and harassment (sexual and non-sexual) based on gender (female) and
reprisal (for prior EEO contact) as evidenced by 15 separate incidents that formed the bases of her
claim.

At the time of events giving rise to this complaint, Complainant worked as a Case Advocate, GS–
11, at the Agency’s facility in Atlanta, Georgia. On February 6, 2016, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of sex (female) and
reprisal for prior protected EEO activity. She alleged that:

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.
BACKGROUND
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Claim 1:

a) S1, her manager, invaded her personal space, whispered in her ear and acted in
inappropriate ways.

b) In May 2015, S1 began to require her to get permission to work credit hours, which he
did not require of her coworkers.

c) S1 called her cell phone and home phone regarding non-emergency issues.

d) In a June 10, 2015 meeting, S1 verbally attacked her, which was noticed and commented
on by her coworkers.

e) In October 2015, a different manager spoke to her in unprofessional ways and singled her
out, including threatening to take her phone away during a meeting, even though others
in the meeting were using their phones.

f) On November 9, 2015, S1 denied her request for inclement weather time.

Claim 2:

a) On April 7, 2016, she was required to present proof of her emergency illness in order to be
approved for telework.

b) On April 22, 2016, she was denied the opportunity to work credit hours and was accused
of violating her telework agreement.

c) On April 29, 2016, she was denied the opportunity to work credit hours.

d) On July 26, 2016, she was approved to work fewer credit hours than she had requested.

e) On July 28, 2016, she was denied a Quality Step Increase (QSI).

f) On August 12, 2016, a case was taken out of her file cabinet.

g) On August 12, 2016, she was asked to change her timesheet.

h) On August 22, 2016, she was denied the opportunity to work credit hours.

i) On August 26, 2016, she was again accused of violating her telework agreement.

Complainant conceded that S1 never took any actions or made any statements that were overtly
sexual in nature. She identified female comparators who she asserted received more favorable
treatment.
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S1 stated that he did whisper, “Don’t do it,” to Complainant because she was using her cell phone
while at a training meeting; and that he was telling Complainant to stop using her cell phone while
the training was being conducted. S1 asserted that he was not aware of Complainant filing any
complaint/grievance over his behavior on May 21, 2015.

Complainant’s first EEO contact was in November 2015. She did not indicate that S1 or her former
second-line supervisor (S2) ever took any actions or made any statements directly involving her
prior EEO activity.

S1 testified that, as a general matter, none of his employees requested credit hours as frequently as
Complainant; that he considered requests for credit hours based on business need/workload; that
he had concerns about the appropriateness of some of Complainant’s requests when he observed
her socializing with other employees instead of working; and that, on occasion, he simply did not
have an opportunity to respond to Complainant’s requests before it was time for her to begin
earning the requested credit hours.

He testified that employees are required to get permission to work credit work hours per the
Collective Bargaining Agreement (CBA). He stated that Complainant had started working credit
hours without prior approval, adding that all employees were told of the contractual requirements
for prior approval of credit work hours; and that Complainant did not dispute the contract
requirement.

He also stated that Complainant had violated the terms of her telework agreement by teleworking
without prior approval. Complainant was not disciplined for any of the alleged actions.

At the conclusion of 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
(AJ). Complainant timely requested a hearing, and the AJ held a hearing on March 27, 2018 and
issued a decision on March 28, 2018. The AJ found that Complainant failed to establish by a
preponderance of the evidence that she was subjected to disparate treatment, or harassment; and
that the Agency did not discriminate against her on the basis of sex or reprisal for her prior EEO
activity. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination or harassment. This appeal
followed.
CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, argues that the AJ’s decision was based on her
manager’s uncorroborated testimony without consideration of her statements or those of her
witnesses. She also asserts that she did not need prior approval to telework since there was a
telework agreement in place; and she requests a second review of her case.

The Agency did not submit a statement on appeal.

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STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony, or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Harassment and Hostile Work Environment: Claims 1(A), 1(C), 1(D) and 1(E)

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

The AJ found that Complainant did not establish elements 2 and 3, i.e., that she was subjected to
unwelcome verbal or physical conduct involving her protected classes, and that the alleged
harassment was based on her protected classes. Specifically, the AJ found that:

Complainant concedes that S1 never took any actions or made any statements that
were overtly sexual in nature, and there is no evidence in the record that S1 or S2
ever took any actions or made any statements directly involving her prior EEO
activity. The only evidence that even arguably pertains to either of Complainant's
protected classes consists of the following: S1 whispering, “Don’t do it” (i.e.,
“Don’t use your cell phone during the training session”) to Complainant on one
occasion in May 2015, S1 purportedly standing in close proximity to Complainant
in her office on multiple unspecified dates, and S1 calling Complainant on her
cellphone, either when she was in the office or at home, on 5 - 10 occasions, and
on at least one of those occasions, inquiring as to how she was doing after she
informed him that she needed to use sick leave.
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I find that, unwelcome though they may have been, the incidents of alleged
harassment identified by Complainant simply do not, in and of themselves,
evidence a discriminatory animus.

Moreover, the AJ found that the conduct at issue was neither severe or pervasive enough that a
reasonable person in Complainant’s position would have found the conduct to be hostile or
abusive. In this regard, the AJ noted that not everything that makes an employee unhappy in the
workplace creates a cause of action of discrimination, and that the discrimination laws enforced
by the Commission are not to be used a “general civility code.” Furthermore, the AJ found that
“[a]ll of the acts of alleged harassment at issue in this case involve ordinary office interactions and
experiences consistent with the exercise of managerial authority, which, though certainly
unpleasant from Complainant’s perspective, did not alter the conditions of her employment and
create a hostile or abusive working environment.”

We find that the record contains substantial evidence to support the AJ’s findings with regard to
Complainant’s hostile work environment claim.

Disparate Treatment: Claims 1(B), 1(F), 2(A), 2(B), 2(C), 2(D), 2(E), 2(F), 2(G), 2(H), and 2(I)

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in 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. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). 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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its
actions. With regard to claim 2(A), Complainant was approved for telework despite not providing
the requested information. The AJ found that S1’s request was consistent with the CBA. In claims
1(B), 1(F), 2(B), (C), (D), and (H), Complainant asserted that she was subjected to discrimination
when, on various dates, the Agency denied her requests or only partially approved her requests by
authorizing her to work fewer credit hours than she desired. The AJ found that S1 testified that,
as a general matter, none of his employees requested credit hours as frequently as Complainant,
that he considered requests for credit hours based on business need/workload, that he had concerns
about the appropriateness of some of Complainant's requests when he observed her socializing
with other employees instead of working, and that, on occasion, he simply did not have an
opportunity to respond to Complainant's requests before it was time for her to begin earning the
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requested credit hours. The AJ also noted that some of Complainant’s requests were denied, at
least in part, because of genuine mistakes or miscommunication between Complainant and S1 and
between Complainant and A1, who was acting for S1 at times. In claim 1(F), S1 indicated that
Complainant was denied inclement weather time because although the power may have been off
at her home, the office had power and was open for business. In accordance with the CBA, S1
was not authorized to grant her request for inclement weather leave.

In claims 2(B) and 2(I), Complainant argued that she was subjected to discrimination when, on
April 22, 2016, and August 26, 2016, S1 accused her of violating her telework agreement. The AJ
found that, on April 22, 2016, S1 accused Complainant of teleworking without approval in error
and in an April 25, 2016, email message, he apologized to Complainant. On August. 25, 2016, S1
accused Complainant of failing to follow the CBA when she did not provide details regarding her
request to work from home.

In claim 2(E), Complainant claimed that she was subjected to discrimination when, on July 28,
2016, she was denied a QSI. The AJ found that employees are not entitled to QSIs, and that they
are awarded to those few individuals who have gone above and beyond their ordinary duties in an
exceptional manner. S1 testified that he did not believe Complainant earned a QSI, despite her
very high-performance appraisal, as her work was not consistently exceptional, and she did not go
above and beyond her ordinary duties.

In claim 2(F), Complainant asserted that she was subjected to discrimination when, on August 12,
2016, a case file was taken out of her filing cabinet. The AJ noted that S1 took the case file to
respond to a taxpayer inquiry; the evidence also indicated that, in an email message to Complainant
on August 15, 2016, S1 assured Complainant that, in the future, he would let her know whenever
a case file was removed from her filing cabinet.

Finally, in claim 2(G), Complainant maintained that she was subjected to discrimination when, on
August 12, 2016, she was asked to change her timesheet. The record showed that S1 asked
Complainant to change her timesheet in error based on his mistaken belief that she had not
submitted a leave request for August 10, 2016; in an email message sent on August 15, 2016, S1
acknowledged his error and advised Complainant that the leave request had in fact been pre-
approved.

We find that there is substantial evidence in the record to support the AJ’s findings that
Complainant did not establish pretext with regard to these matters, nor did she show that
discriminatory animus played a role.

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 order.
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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

July 24, 2019
Date