[Redacted], Gregg B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Oct 24, 2022

Appeal No. 2022001352 (E.E.O.C. Oct. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregg B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2022001352 Agency No. IRS-21-0115-F DECISION On January 13, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 14, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Tax Examiner, GS-07, at the Agency’s IRS Wage & Investment (W&I), Atlanta Service Center in Atlanta, Georgia. On February 9, 2021, Complainant filed a formal complaint alleging that the Agency subjected Complainant to discrimination based on sex (male) when: 1. The Agency charged Complainant with a total of 48.5 hours of Absence Without Leave (AWOL), including 38.5 hours for November 16-19, 2020, and 10 additional hours on or about November 30, 2020. 2. Thereafter, the Agency temporarily revoked his telework agreement. 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. 2022001352 2 3. On numerous unspecified dates over the past two years, he was subjected to various of acts of harassment, including, but not limited to, the following Agency actions: a. Subjecting him to excessive scrutiny and documentation; b. Placing strict requirements on time spent on telephone duty; c. Requiring him to organize his workplace shelves; d. Limiting his social interactions with colleagues and requiring him to use break time for those interactions; and e. Refusing to provide him with his Personnel Folder. After an investigation, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. According to the Agency, however, Complainant did not respond to the notice. On October 14, 2021, after determining that Complainant had not requested a hearing, the Agency issued its final decision, finding no discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. 2022001352 3 Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscretionary reasons for its actions, as more fully discussed below. During the relevant period, Complainant’s first-level supervisor was the Supervisory Financial Technician (“the Supervisor”), his second-level supervisor was the Operations Manager, and Complainant’s third-level supervisor was the Department Manager. Claim 1 Regarding claim 1, Supervisor (female) stated that at that time that the COVID pandemic commenced, the Agency physical office was shut down between March 2020 - June 15, 2021.2 As of June 15, 2021, the evacuation order for the facility was rescinded, although employees were provided the option to engage in at least some telework. The Supervisor was the official who charged Complainant with the 38.5 hours of AWOL. She explained that Complainant did not follow the Agency’s specific telework requirements of submitting a Case Time Management Sheet (CTM) to verify activities and he did not communicate with his manager. The Supervisor explained that on October 28, 2020, Complainant and other coworkers were informed that AWOL entries could be possible if all Telework Requirements were not followed. She asserted that several attempts were made to contact Complainant on the dates in question. She noted that there was no record of Complainant being actively at work or that active work was performed on these dates. The Supervisor stated although Complainant’s office day was Tuesday, he did not submit a CTM for the entire week and was considered absent without permission because he did not complete and submit a CTM to show his daily activities. Moreover, the Supervisor noted that Complainant did not communicate with his manager and there was no record of management being notified of any issues preventing Complainant from performing work during normal hours. The Supervisor noted that on November 30, 2020, Complainant was scheduled to telework but again did not verify his daily activities, but instead submitted a blank CTM sheet which was an indication that no active work was performed. She also noted that on November 17, Complainant did not provide a copy of his CTM sheet until November 23, 2020, and if Complainant had printed letters and reports, this was considered work that he would have performed, but his statement clearly stated that no work was being done. In addition, the Supervisor stated that prior to the AWOL charges and email notification of November 23, 2020, Complainant was non-responsive to many communications and that she attempted to explain he was being charged AWOL because of he was being non-responsive to 2 There may have been an inadvertent reference to the date that the Covid pandemic commenced. We take administrative notice that the pandemic began in March 2020, and not in March 2019. 2022001352 4 many communication including emails, Skype, and other means of communication with his manager. The Supervisor stated that on June 16 and July 28, 2020, she had informed Complainant of the requirement to keep management informed of any conditions that interrupt work and submitting CTM sheets. The second-level supervisor confirmed that employees, including Complainant, were required to provide a CTM sheet daily with work activities and if the manager was unable to communicate with the employee, they charged the employee as AWOL. Regarding claim 2, the Supervisor stated that Complainant’s telework agreement was revoked as of December 7, 2020, and he received an email notifying him of this action on December 3, 2020. Specifically, she stated that Complainant did not follow the rules and policies that govern telework. The express circumstances of Complainant’s failure to adhere to such policies has already been delineated in our discussion of Claim 1. The record contains a copy of Complainant’s Telework Reinstatement dated January 5, 2021. The Supervisor informed Complainant that his Telework Agreement has been reinstated effective December 14, 2020. She placed Complainant on notice that his participation in the IRS Telework Program was voluntary. However, once an employee enters into a telework arrangement, the rules and policies that govern telework must be followed. All teleworkers must satisfactorily complete all assigned work, consistent with the approach adopted for all other employees in the work group and according to standards and guidelines in the employee’s performance plan. Here we conclude that Complainant failed to prove, by a preponderance of the evidence, that the legitimate, non-discriminatory reasons detailed above for the disputed actions were really a pretext designed to mask an unlawful discriminatory motivation. Claim 3 To prove a harassment/hostile work environment claim, Complainant must establish that she 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 a protected basis - in this case, her race sex, disability, and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 3, Complainant alleged that on numerous unspecified dates over the past two years, he was subjected to various of acts of discriminatory harassment, including, but not limited to: 2022001352 5 a. Subjecting him to excessive scrutiny and documentation; b. Placing strict requirements on time spent on telephone duty; c. Requiring him to organize his workplace shelves; d. Limiting his social interactions with colleagues and requiring him to use break time for those interactions; and e. Refusing to provide him with his Personnel Folder. Complainant alleged that on December 19, 2019, the Correspondence Lead Technician elevated an error regarding his inventory to the Supervisor, the Operations Manager and the Department Manager without addressing it with him, and the Supervisor replied by lowering his evaluation and indicating possible disciplinary action. The Supervisor stated she does not recall this incident. Regarding the claim that the Supervisor required him to organize his workplace shelves, which was not a requirement of other employees, the Supervisor stated that all employees, and not merely Complainant, were asked to maintain, monitor, and manage inventory on their assigned shelves to ensure timely movement of any assigned inventory. Complainant alleged that every Tuesday, the Supervisor limited his social interactions with colleagues by coming to his desk and informing those with whom he was speaking that he was not on break and so could not have company. She responded that she had constantly reminded Complainant to practice social distancing while in the building due to the Covid pandemic. In addition, the Supervisor stated that Complainant also had aged inventory that needed his immediate attention. Specifically, she stated that Complainant has not effectively and efficiently used good time usage and workload management skills. Regarding Complainant’s allegation about his Personnel Folder, the Supervisor stated, she sent an email requesting to Complainant to arrange time for him to review his Personnel Folder. However, she did not receive a response from Complainant to confirm that date. The Supervisor stated that she made one more unsuccessful attempt on February 9, 2021, to arrange a time with Complainant to review his Personnel Folder. Here, Complainant simply has provided no persuasive evidence to support his claim that his treatment was the result of his sex. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated because he was male. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3 3 Because we affirm the Agency’s findings on the merits, we find it unnecessary to address the appellate argument that Complainant’s appeal was not timely filed. 2022001352 6 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). 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). 2022001352 7 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. 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 October 24, 2022 Date