[Redacted], Bobbye C., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020003740 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bobbye C.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020003740 Hearing No. 460-2019-00168X Agency No. IRS-18-0981-F DECISION On June 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 6, 2020 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Individual Taxpayer Advisory Specialist (ITAS) at the Agency’s Houston, Texas facility. On November 2, 2018, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against her on the bases of disability (physical) and in reprisal for prior EEO activity when: on August 30, 2018, she was not properly evacuated from a building during a fire. 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. 2020003740 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the motion. On April 23, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020003740 3 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The AJ found finding the following pertinent undisputed facts were established during the investigation of the complaint: Complainant has worked as an Individual Taxpayer Advisory Specialist (ITAS) at the Agency’s Houston, Texas facility. During the relevant period, the Supervisory ITAS was Complainant’s first line supervisor and the Supervisory ITAS/Territory Manager was Complainant’s second line supervisor. Agency management was aware that Complainant wears braces on both legs and walks with the assistance of a cane. The AJ noted that on August 30, 2018, a fire occurred within Complainant’s work site. The property management was responsible for the building where Complainant worked. At that time, Complainant worked on the third floor of the building. On August 30, 2018, Complainant’s supervisor (S1) was the designated Floor Monitor for Complainant’s work area in the event of the fire. Complainant’s workstation was located within the supervisor’s Floor Monitor zone of responsibility. During the incident, the third floor of Complainant’s worksite lost power. Complainant waited in the hallway instead of the inside of the stairwell because the stairwell was pitch black due to the power failure. The record reflects that during a fire, employees are directed not to use elevators. Subsequent to the fire alarm, Complainant reported to her designated “Stand Point,” which is the location on Complainant’s floor at her work site where she is to await the arrival of emergency responders to evacuate her down the stairwell. S1 noted that Complainant had not been evacuated from the “Stand Point.” While waiting with the supervisor, the IRS Security Officer came along and radioed for help. Thereafter the property management security guard arrived. The Guard advised Complainant and S1 that they needed to take the elevator to evacuate because that was the fastest way to evacuate at that time. S1 waited with Complainant until they left the building. The next day, August 31, 2018, Complainant reported to work and informed S1 that she needed to see a doctor due to stress stemming from the incident the day before. Thereafter, Complainant was away from work until January 29, 2019, for a total of 152 calendar days. In her decision, the AJ determined that Complainant failed to assert a prima facie of discrimination or reprisal claim. Specifically, the AJ stated that Complainant failed to identify a responsible management official “who intentionally delayed her evacuation from her worksite on August 30, 2018.” She noted that S1 was aware of Complainant’s prior EEO activity. 2020003740 4 The AJ further noted that Complainant “is apparently not asserting that [S1] retaliated against her by delaying her evacuation. This is likely because [S1] was in the building with Complainant until she was actually evacuated from the building. [S1] faced the same risks that Complainant face until they were both evacuated from the building and put her personal safety in peril to stay with [Complainant].” The AJ further noted that Complainant claimed that the Supervisory ITAS/Territory Manager, also Complainant’s second-line supervisor (S2), retaliated against her because he was a manager whom she identified in a previous EEO complaint. She noted that Complainant, did not claim that S2 had any involvement in what took place on August 30, 2018 and “instead, her theory of Agency liability hinges on whether the Agency had lift equipment to properly evacuate her from her worksite during an emergency.” The AJ, however, properly found no evidence to support an inference that Complainant’s disability played any part in Complainant’s delayed evacuation from her worksite on August 30, 2018. The AJ determined that Complainant has not raised a genuine issue of material fact which entitles her to a hearing. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 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. 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). 2020003740 5 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. 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. 2020003740 6 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 August 16, 2021 Date