[Redacted], Art B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionJun 10, 2021Appeal No. 2020003354 (E.E.O.C. Jun. 10, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Art B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020003354 Agency No. IRS-19-0999-F DECISION On April 30, 2020, 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 March 31, 2020 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 Contact Representative, GS-0962-08, for the Agency’s Wage and Investment Division, Accounts Management in Fresno, California. His first-level manager was the Supervisor Contact Representative (M1); second-level manager was the Department Manager (M2); and third-level manager was the Operations Manager (M3). Between March 25, 2019, and June 3, 2019, management charged Complainant with over 80 hours of Absence Without Leave (AWOL) alleging he failed to follow the Agency’s procedures 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. 2020003354 2 for requesting leave to donate blood and to engage in union activities during work hours.2 M1 called Complainant into her office on March 27, 2019, to discuss administrative leave after Complainant had requested administrative leave for donating blood on March 25, 2019. M1 wanted Complainant to submit a blood donation slip showing he donated blood on March 25, 2019, to support his administrative leave request. Complainant alleged M1 spoke to him disrespectfully, talked over him and ignored his question by not giving concrete answers. He questioned M1’s request for a donation slip, stating none of his previous managers had requested proof of donating blood in the past in order to approve the leave request. Complainant emailed M1 requesting all future communications between them be through email since he could not speak during their last communication and M1 did not answer his questions. He stated he did not want to be misunderstood and stated that if she needed anything from him that she could email or text him. M1 rejected Complainant’s request, telling him all future communications would be face-to-face. M1 offered a second meeting for them to meet with her Department Manager, M2, to discuss any disagreements. Complainant responded requesting that he have union representation for any face-to-face communications with M1. On March 29, 2019, M1 went to speak with Complainant at his desk while he was on the phone. She gave complainant a Notice of AWOL Charge for March 25, 2019. The notice stated M1 had requested a blood donation slip three times from Complainant, which Complainant failed to provide. Therefore, he was being charged 10 hours of AWOL. Complainant stated M1 refused to acknowledge his request for union representation. He stated M1 discussed his leave and AWOL charge loudly so that others in the unit heard his personal information. Around the beginning of April, Complainant noticed his timecards were being changed without his permission to show less overtime. Complainant stated he tried to speak with M1, M2, and M3 regarding his AWOL charges and M1 changing his timecard without permission and asked them to provide the information relied upon for the AWOL charges. M3 informed him he needed to address time-and-attendance issues with M1 and arranged a follow-up meeting between M1 and Complainant. On April 12, 2019, Complainant arrived at M1’s office for the meeting with his union steward, and M1 had a colleague present as an observer. Complainant asked M1 a series of questions regarding her mandate that all communications be face-to-face, the AWOL charge he received when he donated blood, the requirement for a blood donation slip, and changing his timesheet. Complainant stated M1 did not answer his questions nor did she allow him to ask all his questions. M1 ended the meeting by requesting Complainant and his union steward leave her office. 2 Complainant donated blood on March 25, April 8, April 29, May 13, and June 3, 2019. M1 charged Complainant with being AWOL, claiming Complainant failed to follow leave procedures for requesting administrative leave to donate blood. On April 3 and 10, 2019, Complainant went to the union office during work hours and was charged AWOL because he failed to obtain M1’s prior approval to do so. On April 16, 17, 18, and 19, 2019, Complainant was charged AWOL because he failed to report to work at the start of his shift or he failed to request leave. 2020003354 3 On April 15, 2019, Complainant received a memorandum confirming the verbal discussion with M1 on April 12, 2019, regarding several management directives he received at the meeting. Specifically, the memorandum explained the requirement that Complainant sign in and sign out whenever he worked overtime. The memorandum explained management needed to be able to verify he is working overtime and, in the case of emergencies, so that he can be accounted for. It also stated he needed to follow the check-in/check-out procedures when requesting to go to the union office for personal reasons and when working officially as a union steward; report to his assigned unit desk to work at the beginning of his tour of duty, unless he had advanced approved leave for his absence; to input his time daily and that his timesheet should be inputted for the full week by close of business Thursday, allowing management to validate and sign his timesheet by Friday at 9:00 a.m.; and, communicate with M1 face-to-face and not by email unless directed otherwise. After the meeting, Complainant again emailed upper management for help with these issues and answers to his questions. On April 16, 2019, M3 informed Complainant he had yet to meet any of the management directives issued to him. M3 informed Complainant management was willing to listen to Complainant, however, he first needed to communicate with M1 directly face- to-face. Complainant was again informed that time-and-attendance issues should be resolved with an employee’s immediate supervisor, M1. In mid-April, Complainant alleged coworkers found copies of his AWOL charges that M1 had left on the copying machine, violating his privacy. Complainant alleged M1 was enforcing nonexistent rules when, as detailed above, she charged Complainant with over 80 hours of AWOL from March 25, 2019, to June 3, 2019, claiming he failed to follow leave procedures for requesting administrative leave to donate blood; when he went to the union office during work hours and he failed to obtain M1’s prior approval to do so; and, when he failed to report to work at the start of his shift or he failed to request leave. On August 6, 2019, Complainant filed a formal complaint alleging the Agency subjected him to harassment based on his race (African-American) and sex (male) when, beginning in March 2019, his manager scrutinized his use of time for donating blood; required him to bring a doctor's note; did not let him speak during face-to-face meetings; directed him not to email her; violated his privacy; disregarded his request for union representation; charged him AWOL on many dates and for various reasons; changed his time sheets without informing him and refused to answer Complainant's questions and to provide the overtime sign-in sheets; and upper management ignored his emails, repeated unhelpful advice and refused to answer his questions. At the conclusion of 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). 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. The instant appeal followed. 2020003354 4 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person†in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the totality of the incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. For example, M1 and M2 both explained that Agency employees are required to request and secure approval of leave as far in advance as possible in accordance with local procedures and must provide any required documentation. To receive administrative leave for blood donations, employees must provide a leave request beforehand and bring a blood donation slip from the blood bank after donation. 2020003354 5 M1 stated she discussed these attendance rules with Complainant and provided him a copy of the Agency’s Employee Expectations-FY2019, which references that leave policies also apply to administrative leave in the collective bargaining unit. M1 stated Complainant did not follow the various types of leave procedures applicable, such as requesting leave in advance of foreseeable non-emergency absences and failing to inform her when he would not be coming in to work. Additionally, he did not adhere to the sign-in and sign-out process required or report to his work area at the start of his shifts. As explained above, M1 updated Complainant’s timesheets because of the AWOL charges, which reduced his total regular worked, resulting in a recalculation of the number of hours that qualified for overtime. M1 had also provided Complainant with notice of changes that corrected for days he was charged AWOL by giving him copies of amended timesheets for March 30, April 8-10, and June 4-6, 2019. Finally, the record reveals that upper management also answered Complainant’s emails, even though they generally had to explain to Complainant that he needed to follow the proper chain-of-command given the questions regarded his time and attendance, which needed to be raised with M1 since she was responsible for approving and correcting his timesheet. The Commission finds that Complainant has not shown that he was subjected to a discriminatory hostile work environment. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020003354 6 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003354 7 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 10, 2021 Date Copy with citationCopy as parenthetical citation