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

Equal Employment Opportunity Commission

Apr 14, 2021

Appeal No. 2020000910 (E.E.O.C. Apr. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda H.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000910 Hearing No. 480-2018-00108X Agency No. IRS-17-0365-F DECISION On November 1, 2019, 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 October 2, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Revenue Officer, IR-1169-5, at the Agency’s Small Business/Self-Employed Collection Operations, Field Collection facility in Huntsville, Alabama. On June 9, 2017, Complainant filed an EEO complaint alleging that the Agency subjected Complainant to harassment on the bases of race (Caucasian) and sex (female), from January 4, 2016 to October 28, 2016, when: 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. 2020000910 2 1. From January 4, 2016 to October 28, 2016, Complainant’s supervisor (the Acting Territory Manager), repeatedly spoke condescendingly to her; 2. Upon meeting Complainant for the first time on February 17, 2016, the Acting Territory Manager threatened to fire her and later provided her a negative Memorandum detailing the visit; 3. On February 18, 2016, the Acting Territory Manager attempted to sow dissent amongst Complainant’s subordinates by meeting with two female subordinates and not including male subordinates; 4. On March 4, 2016, the Acting Territory Manager issued a “Town Hall/Post of Duty Visit” memorandum containing false accusations disparaging Complainant; 5. On March 7, 2016, the Acting Territory Manager falsely accused Complainant of abusing leave; 6. On March 16, 2016 and other dates not specified, the Acting Territory Manager repeatedly refused to grant Complainant credit hours, annual leave, and/or sick leave; and 7. On October 28, 2016, the Acting Territory Manager reduced Complainant’s annual evaluation from an “exceeds” rating to a “met” rating and, although the Agency subsequently revised the rating to an “exceeds” rating, the Agency denied her a monetary reward. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts: Complainant attested that, from January 4, 2016 to October 28, 2016, the Acting Territory Manager spoke to her condescendingly, accusing her of being inaccessible to her employees and other false accusations that were put into her Employee Performance Folder (EPF). Complainant alleged that sex was a factor because he would not have spoken as harshly or in a condescending way to a male. The Acting Territory Manager acknowledged having conversations with Complainant during this time but denied being condescending. Complainant alleged that, upon meeting her on February 17, 2016, the Acting Territory Manager threatened to fire her and provided a negative memo detailing the visit. She attested that he was negative about her and her work group and told her that he fired an employee the week or day before Christmas, which she felt was to intimidate, bully, threaten, and harass her. She also attested that his posture and facial expression were intimidating, bullying, and harassing. She alleged that he required her to write extensive narratives when she evaluated employees which kept her from performing other work and advised her to step down and go back to the field. She attested that the memo appeared to have been written prior to his meeting her and included disparaging false remarks about her and her employees. She attested that he discussed the Employee Assistance Program with her regarding her mental health. She believed race and/or sex were factors because he was trying to get her to step down in order to promote a black woman and he would not have handled a male in the same way. 2020000910 3 The Acting Territory Manager attested that he did not threaten to fire Complainant and did not recall a memo dated February 17, 2016 or the alleged events. Complainant attested that, on February 18, 2016, the Acting Territory Manager asked her to leave during a Town Hall meeting to attend computer training and while she was absent, he had lunch with two of Complainant’s subordinates who are black females. She attested that, after this lunch, the Acting Territory Manager came into Complainant’s office and told her allegations that the two employees made against Complainant. Complainant alleged that the meeting was for subterfuge and collusion with her subordinates. She alleged that race and/or sex were factors because he met with black females and did not meet with any males. The Acting Territory Manager attested that, on February 18, 2016, he met with all members of his team that were present that day, informally, to get to know each employee. He attested that it was his understanding that the only male employee was not present that day. He attested that he asked the employees if there was anything he could do to assist them with their career plans and the employees brought their concerns regarding Complainant, including not approving work timely, leaving the office for long periods of time, treating employees differently based on race, not being approachable, refusing to assist all team members in the same manner, exhibiting strange behavior, scheduling appointments and then refusing to meet with employees at the scheduled time, and moral problems in the office. Regarding the allegations in claim (4) about the issuance of a Town Hall/post of Duty Visit Memorandum on March 4, 2016, Complainant attested that this is the same memo referenced in claim (2). Complainant attested that this memo documented false information regarding Complainant’s poor management skills based on input from Complainant’s two black female employees. She alleged their motivation was to get her forced out of her positions so that one of them could be promoted. She attested that the Acting Territory Manager did not speak with employees who were white or male and alleged that race and/or sex were factors because he only chose black employees for input and would never have treated or spoken to a male employee in the same way. Complainant also attested that the Acting Territory Manager wrote that she lacked managerial and leadership skills in her June 2016 operational review. The Acting Territory Manager attested that he issued the memorandum on March 4, 2016, which detailed his visit and expectation to move forward. He attested that it was intended to address the low morale and concerns provided to him during his visit, as a follow up to his visit. Complainant attested that, during calls with the Acting Territory Manager and the Director Collection Area Gulf State (Director), the Acting Territory Manager accused her of being out of the office and inaccessible to her employees or not working her tour of duty. Complainant generally attested that she followed the Agency’s leave procedures and was honest with her time reported. 2020000910 4 Complainant believed that race and/or gender was a factor because the Acting Territory Manager was trying to make things rough for her to force her to step down and he could promote a black female; she also alleged he would not have treated a male manager the same way. The Acting Territory Manager attested that he did not recall having a discussion with Complainant on March 7, 2016 about abusing leave. Complainant attested to the multiple alleged instances when the Acting Territory Manager refused to grant her requests for credit hours, annual leave, and/or sick leave. She attested that he accused her of not being at work and advised her that she should utilize administrative staff to get her work done in 8 hours. Complainant asserted that she was in the office except when she had approved leave, always appointed an acting manager when she was on leave, and always accounted for her time off but did not always account for the hours she worked. She also attested that she did not take excessive leave but started to take more leave after being harassed by the Acting Territory Manager. Complainant alleged that race and gender were factors because the Acting Territory Manager had an agenda to force her out of management in order to promote a black female and he would not have refused credit hours or disapproved leave for a male employee. Complainant attested that, on October 28, 2016, the Acting Territory Manager reduced her appraisal from an “exceeds” rating to a “met” rating and, although her rating was subsequently revised to an “exceeds” rating, she was denied a monetary award. Complainant attested that she did not receive the monetary award because she did not initially receive an “exceeds” rating but received it after she successfully appealed her “met” rating and, by that time, it was too late. She attested that management told her that she received the “met” rating because she did not write her self-assessment clearly. Complainant attested that she believed her race and/or sex were factors because the Acting Territory Manager created a hostile work environment and attempted to discredit her to force her to step down so he could promote a black female; she also alleged he would not have given a “met” rating to a male for not writing his self-assessment well enough. The Acting Territory Manager attested that he gave Complainant a “met” rating because her performance was at the level of “met” and not “exceeds.” He explained that he was not part of the appeal process when Complainant’s rating was changed. He attested that it was not his decision whether or not Complainant would be given a monetary award. He explained that the Agency’s policies regarding annual evaluations include monetary awards for employees who are rating “outstanding” and “exceeds” and it was his understanding that 60% of each team may receive a monetary award. Another Territory Manager attested that he disagreed with Complainant’s allegations that she was treated different from other managers because she did not receive a monetary award when her evaluation was changed from “met” to “exceeds. He explained that each area is limited in the number of monetary awards that can be issued in a fiscal year and a manager who is rated as “exceeds” is not guaranteed a monetary award. 2020000910 5 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s May 15, 2019, motion for a decision without a hearing and issued a decision without a hearing on September 10, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. One appeal, Complainant argues that the AJ’s issuance of a decision without a hearing was arbitrary, capricious, an abuse of discretion, and not in accordance with law. She also argues that she has articulated a strong case for harassment on the basis of race and has demonstrated that the Agency’s reasons for lowering her evaluation were mere pretext. She also argues that the Agency did not provide a legitimate non-discriminatory reason for denying Complainant her bonus. She also asserts that the Agency cannot escape liability by simply correcting the error and removing the harasser. In response, the Agency argues that Complainant has not provided any argument to show that the AJ’s findings were legally or factually deficient. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency’s motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. 2020000910 6 Harassment Claim To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 Agency. 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). In other words, to prove her harassment 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 and/or sex. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Many of Complainant's allegations can generally be described as disagreements with the Acting Territory Manager’s exercise of managerial discretion in matters of supervision, including meeting or corresponding with subordinates, granting leave, and awarding bonuses. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Complainant’s remaining allegations generally were her objections to being spoken to by the Acting Territory Manager in a way she found unpleasant. Even assuming these allegations are true, we find they are insufficiently severe or pervasive to have altered the conditions of her employment. The alleged incidents are of a type that typically arise out of petty disputes, personality conflicts, or poor communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Thus, Complainant's allegations are insufficient to establish a claim of discriminatory harassment. 2020000910 7 Disparate Treatment Claim 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 complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, 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). 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 based on 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 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. 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). In the instant case, Complainant alleged that, on the basis of race and/or sex, the Agency denied her a monetary award for performance.2 However, in so doing, she also acknowledges that the reason she was not given the award is because her rating was increased in a grievance proceeding, after she had appealed the matter, and the reviewing committee told her that it was too late for her to receive the award. We recognize that Complainant alleges that the Acting Territory Manager should have given her the higher rating initially and she would have, then, received the award. However, we find this to be speculative because the record shows that, while employees who received ratings of “outstanding” or “exceeds” were eligible for monetary awards, they were not guaranteed or entitled to receive them. Therefore, we find that, although Complainant has alleged discrimination on the basis of race and/or gender, she has failed to prove by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. 2 In so far as Complainant’s allegations include other discreet claims of discrimination, we note that the EEO Counselor’s report indicates that Complainant initially contacted the EEO office regarding the instant complaint on November 25, 2016. We find that Complainant’s other claims occurred more than 45 days prior to that initial EEO Counselor contact and are, therefore, untimely. See 29 C.F.R. § 1614.107(a)(2). 2020000910 8 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 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 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. 2020000910 9 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. 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 April 14, 2021 Date