[Redacted], Eloy S., 1 Complainant,v.Janet Yellan, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 8, 2021

Appeal No. 2020003177 (E.E.O.C. Sep. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eloy S.,1 Complainant, v. Janet Yellan, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020003177 Agency No. IRS-19-0825-F DECISION Complainant timely 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 19, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are: 1) whether Complainant established that the Agency denied him a reasonable accommodation for his mental disability; 2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of disability and reprisal; and 3) whether Complainant established that he was subjected to a hostile work environment and constructive discharge, as alleged. 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. 2020003177 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Representative at the Agency’s Wage and Investment Division in Kansas City, Missouri. Report of Investigation (ROI) at 114. Complainant’s duties as a Contract Representative required using the telephone on the Agency’s Customer Service Toll-Free system to speak with and assist individuals and businesses to resolve taxpayer issues. ROI at 493. The Contract Representative Management Trainee served as Complainant’s first-level supervisor (S1) and the Department Manager was assigned as Complainant’s second-level supervisor (S2). According to Complainant, S1 and S2 listened in and unfairly evaluated three of his phone calls with taxpayers on September 14, 2018; October 4, 2018; and April 17, 2019. Id. at 120-22. S2 explained, however, that calls are reviewed by a Centralized Evaluative Review Specialist (CERS) with calls being loaded into a "randomizer" and dropped into the CERS’s queue to be reviewed. Id. at 397. S2 further explained that the CERS is required to review all calls in their queue and cannot select calls. Id. S2 averred, as to the September 14, 2018, call, that Complainant was signed into the system in a “ready” status but when the caller came onto the line, Complainant did not acknowledge the caller. Id. In addressing the October 4, 2018, call, S2 averred that Complainant asked the caller the same questions repeatedly. Id. Additionally, S1 explained that she did not review the April 17, 2019, call but did listen to the recorded call after it was reviewed. Id. at 371. S1 explained that the caller was a secondary taxpayer calling to make sure a refund was getting mailed to the correct address. Complainant performed “disclosure” with the secondary taxpayer, which the taxpayer passed. Id. But, Complainant then improperly continued with high-risk disclosure when, after asking about her place of employment, the caller replied that she was not employed. Id. S1 further explained that Complainant began to ask high-risk questions under the primary taxpayer's information, instead of continuing the high-risk questions under the secondary taxpayer information and, when the caller could not answer all of the questions, Complainant ended the call. Id. In April 2019 the Agency was under an “all hands on deck” directive because it was peak tax season, requiring employees to handle phone calls for the full day. Id. at 375. However, on April 2, 2019, Complainant submitted a doctor’s note from his family doctor, which only noted that: Patient feels phone is exacerbating his anxiety and needs limitations [of] no more than one “2 hour” phone time block per day. Id. at 501. On April 8, 2019, S2 issued Complainant a failure to follow directive memorandum, directing Complainant, in pertinent part, to immediately log onto the phone system and assist taxpayers as required by his position. Id. at 499-500. Complainant, however, reiterated that he requested an accommodation and continued to need his phone time to be limited to no more than two hours per day. 2020003177 3 In a meeting with S1 and S2, Complainant stated that he needed a reasonable accommodation, for his anxiety, of a change in his duties to only two hours of phone duty each day. S1 responded that being on the phones and available to taxpayers was an essential part of Complainant's job functions, and that if he wanted to discuss submitting a reasonable accommodation request to move to a position with no phone requirement, he was welcome to do so. Id. at 380. On April 17, 2019, management issued Complainant a second memorandum for “Inappropriate Communication” with a taxpayer. Id. at 498. The memorandum noted that Complainant was observed on October 4, 2018, and April 17, 2019, speaking in a robotic voice with taxpayers over the phone. Id. The memorandum noted that when Complainant was asked why he was using the voice, he responded that “if the Agency wants me to be a robot, I will be a robot.” Id. Meanwhile, on April 15, 2019, an EEO Specialist with the Agency’s Reasonable Accommodation division sent Complainant Form 13661, for requesting a reasonable accommodation. Id. at 418-19. According to the EEO Specialist, Form 13661 specifically explained that sufficient medical documentation must be submitted with the executed form. Id. The EEO Specialist stated that she received an email from Complainant on April 22, 2019, with a signed copy of the form, but without any medical documentation. Id. The EEO Specialist attested that she then notified management of Complainant's interim accommodation request, of being temporarily off the phones, while he worked on obtaining the appropriate medical documentation for his mental condition. Id. The EEO Specialist stated that she continued to follow-up with Complainant, for weeks, in an attempt to obtain the necessary medical documentation, but Complainant informed her that he had left the Agency. Id. A Notification of Personnel Action, dated May 16, 2019, was effectuated by the Agency indicating that Complainant resigned from his position for personal reasons. Id. at 492. According to Complainant, when the EEO Specialist emailed him on April 29, 2019, asking for the requested medical documentation, he replied that he had to quit his job and therefore no longer needed to provide the paperwork. Id. at 149. On June 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of disability (depression and anxiety) and reprisal for prior protected EEO activity2 when: 1. His telephone calls were incorrectly evaluated and his performance on the telephone was unfairly criticized; 2. He received memorandums on April 8 and April 17, 2019; and 3. His request for reasonable accommodation was denied on April 8, 2019. 2 Complainant alleged that he was subjected to reprisal for requesting a reasonable accommodation. 2020003177 4 Following 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final decision, which the Agency issued pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for issuing Complainant the memorandums and Complainant did not establish that those reasons were pretextual. Further, the Agency determined that Complainant could not be accommodated in his position, as use of the phone system to speak with taxpayers was an essential function of the job. It observed that, although the EEO Specialist received Complainant’s signed request for reassignment on April 25, 2019, he did not provide any supporting medical documentation. Since Complainant’s reasonable accommodation request was still being processed by the Agency at the time of his resignation, the Agency reasoned that it had not denied the request. The Agency determined, moreover, that its actions towards Complainant were not severe or pervasive enough to amount to a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant argues that he was constructively discharged as a result of the Agency’s harassment and discrimination based on his mental disability. Complainant contends that other Contract Representatives were assigned little, if any, phone duty. Further, Complainant asserts that he was hesitant to ask for a reasonable accommodation due to a fear of reprisal, as he was issued a memorandum on April 8, 2019, directing him to be on the phone even though he was ill and had requested accommodation. He reiterates his belief that he was unfairly targeted by management when it listened to his phone calls and issued him a negative performance memorandum on April 17, 2019, threatening his job. According to Complainant, he had previously received consistent outstanding ratings from several frontline managers. Motivated by reprisal, Complainant argues, management improperly assessed him with an error even though a system glitch during the phone call prevented him from knowing if the taxpayer was still on the line.3 Despite making multiple requests for accommodation, states Complainant, the Agency did not start the interactive process with him. 3 Complainant also maintained on appeal that he was subjected to a hostile work environment when management initiated an investigation, accusing him of threatening an employee. Complainant further contends that he received a letter of reprimand on May 26, 2017. We note that it appears that these matters are being raised for the first time on appeal and the Commission has held that it is not appropriate for a Complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, we will not consider these allegations. 2020003177 5 Complainant also argues that the Agency did not consider alternative accommodations, including: a temporary reduction in his phone duties, allowing a brief rest period in between calls, or a reassignment to a Tax Examiner position. Instead, the Agency flat out denied his request for a reasonable accommodation and subjected him to a retaliatory hostile work environment, which left him no choice but to resign. Further, Complainant states that management improperly discounted his April 2, 2019, doctor’s note, and instead should have granted his accommodation request immediately after receiving the documentation. In response, the Agency requests that we affirm its final decision finding no discrimination. STANDARD REVIEW 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 law”). ANALYSIS AND FINDINGS Reasonable Accommodation Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (EEOC Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance. For purposes of this decision we shall assume that Complainant has established elements 1 and 2. We find, however, that Complainant has not established element 3. In so finding, we note that the record shows that Complainant's request for reasonable accommodation was forwarded to an EEO Specialist with the Agency’s Reasonable Accommodation division within a relatively short period of time. ROI, at 418-19. The record reflects that the EEO Specialist sent Complainant Form 13661, which explained that sufficient medical documentation must be submitted with the filled-out form. Id. 2020003177 6 The EEO Specialist attested that she continued to follow up with Complainant for weeks in an attempt to obtain the needed medical documentation from Complainant. Id. However, Complainant resigned before submitting the requested medical documentation. Id. Upon receipt of a request for accommodation, the burden is on the Agency “to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R. §1630.2(o)(3). We find that here the parties were actively engaged in the interactive process, until Complainant’s reasonable accommodation request was administratively closed upon his resignation. To the extent that Complainant asserts that his April 2, 2019, doctor’s note was sufficient for the Agency to grant his request for accommodation, we disagree. An agency may request medical documentation, about an employee’s disability and the activities it limits, from an appropriate heath care professional, particularly where the employee’s disability or need for an accommodation is not known or obvious. See EEOC Enforcement Guidance at Question 6; EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 27, 2000). We find that Complainant did not submit sufficient medical documentation to support his request for accommodation and has not shown that the Agency's request for additional documentation violated the Rehabilitation Act. As such, we find that Complainant has not established that the Agency denied him a reasonable accommodation for his disability. See Reid P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120161647 (Apr. 3, 2018) (finding that complainant did not show that he was subjected to disparate treatment, a hostile work environment, or denied a reasonable accommodation, as complainant resigned during the interactive process before the agency was able to approve or deny complainant’s proposed reasonable accommodation); Billi L. v Dep’t of Labor, EEOC Appeal Nos. 0120180803, 0120181654 (June 5, 2019) (finding that agency officials engaged in the interactive process with complainant, but complainant resigned from the Agency before any accommodation could be granted). Disparate Treatment To prevail in a disparate treatment claim, 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2020003177 7 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim 1, S1 and S2 explained that calls are randomly reviewed by a CERS. They further explained that the CERSs must review all calls in their queue and cannot select which calls to listen to. ROI, at 397. As such, both S1 and S2 stated that they did not review the calls but did share the reviews with Complainant. Id. at 371-72, 397. S2 averred that Complainant did not acknowledge a caller on September 14, 2018, and asked a caller the same questions repeatedly on October 4, 2018. Id. at 397. S1 explained that Complainant improperly asked a caller primary-taxpayer questions rather than secondary-taxpayer questions on April 17, 2019. Id. at 371. In addressing claim 2, S1 and S2 explained that Complainant was issued the April 8, 2019, memorandum because the Agency had issued an “all hands on deck” directive and Complainant refused to get on the phone system and speak with taxpayers. S2 also explained she could not accommodate Complainant’s request because Complainant's "essential job function is to carry out technical assistance to individuals and/or businesses primarily through telephone contact." Id. at 400. S2 also explained that although Complainant provided a doctor’s note on April 2, 2019, the note "did not indicate any direction from the doctor" and only noted what Complainant "felt he could and could not do." Id. at 405. With respect to the April 17, 2019, memorandum, S1 stated that Complainant engaged in inappropriate communication over the phone by using a “robotic” voice with taxpayers in a loud and distracting manner. Id. at 376. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not shown that management’s reasons were pretextual or were motivated by discriminatory or retaliatory animus. With respect to claim 1, we note that the record reflects that Complainant’s calls were randomly evaluated by a CERS in accordance with Agency procedure and policy. The record shows that S1 and S2 were not involved in listening in on or reviewing Complainant’s calls. There is simply no evidence herein that Complainant’s calls were intentionally targeted, or that his performance was incorrectly evaluated, based on his disability or protected EEO activity. With regard to claim 2, there is no dispute that management issued a directive requiring employees to assist taxpayers over the phone throughout the day due to it being peak tax season. While Complainant may have only wanted to work the phones two hours per day, we conclude that the Agency reasonably found the very short, vague handwritten note by Complainant’s family doctor was insufficient to properly assess the accommodation request. As noted above, there is no dispute that Complainant’s accommodation request was forwarded to the Agency’s Reasonable Accommodation division and Complainant resigned shortly thereafter without providing the requested medical documentation. 2020003177 8 We also note that Complainant did not dispute that he used a robotic voice over the phone while speaking with taxpayers. ROI at 229. Therefore, we find that Complainant has not established that the Agency reasons were pretextual or that the Agency was motivated by discriminatory or retaliatory animus. Hostile Work Environment We further find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Constructive Discharge To the extent that Complainant alleges that he was forced to resign because of the Agency's discrimination, the Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission finds that Complainant has not shown that the Agency's actions were motivated by discriminatory or retaliatory animus. Moreover, as noted above, the parties were actively engaged in the interactive process when Complainant resigned, and therefore the Agency did not have the opportunity to grant or deny Complainant’s request for accommodation. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. Consequently, we find that Complainant has not shown he was subjected to discrimination, reprisal, a hostile work environment, or constructive discharge as alleged. 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 decision 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 2020003177 9 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). 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. 2020003177 10 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 8, 2021 Date