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

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal Nos. 2020003890, 2021001936 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leanne H.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal Nos. 2020003890 & 2021001936 Agency Nos. IRS-19-1473-F & IRS-18-0899-F DECISION Complainant filed two separate appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2020 and January 14, 2021 final decisions, respectively, concerning her equal employment opportunity (EEO) complaints 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. Pursuant to 29 C.F.R. § 1614.606 we exercise our discretion to consolidate both appeals herein. At the time of events giving rise to these complaints, Complainant worked as a Contact Representative, GS-0962-8, at the Agency’s Small Business/Self-Employed Service Center located in Oakland, California. On November 8, 2018, Complainant filed an EEO complaint (Agency No. IRS-18-0899-F) alleging that the Agency discriminated against her on the bases of disability (multiple physical medical conditions impacting her upper and lower extremities) and reprisal (prior protected EEO activity) when: (1) on November 5, 2018, management denied her request for a hardship transfer.2 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. 2 Complainant raised three additional claims and the Agency initially dismissed the entire complaint. In Denese G. v. Dep’t of the Treasury, EEOC Appeal No. 2019002930 (June 30, 2020), the Commission modified the Agency’s dismissal decision and remanded only the hardship transfer claim. 2020003890 & 2021001936 2 On October 19, 2019, Complainant filed a second complaint (Agency No. IRS-19-1473-F) alleging that the Agency discriminated against her and subjected her to a hostile work environment when: (2) on August 14, 2019, her first-level supervisor (S1) informed her that it was her responsibility to obtain transportation to work; (3) on August 22, 2019, S1 contacted Complainant's private insurance company without obtaining prior approval from Complainant; and (4) on September 17, 2019, Complainant learned that S1 provided the Department of Labor with medical notes dated August 6, 2019 and August 9, 2019, without first obtaining a medical release from Complainant.3 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request hearings before an EEOC Administrative Judge (AJ). In accordance with Complainant’s requests, the Agency issued final decisions pursuant to 29 C.F.R. § 1614.110(b). Both decisions concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. 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 law”). 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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 3 The Agency dismissed two additional claims. Complainant raised no challenges regarding those matters and the Commission can find no basis to disturb the Agency’s dismissal decision. 2020003890 & 2021001936 3 We find the Agency’s analysis and findings set forth in its final decisions are supported by the record evidence. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the record does not support the finding that the legitimate, non- discriminatory explanations offered by management for its actions were a pretext for discrimination or retaliation. Specifically, as to claim (1), Complainant’s first and second-level supervisors (S1 and S2) both signed Complainant’s hardship transfer request and forwarded it to the Director. The Director ultimately disapproved the request because it did not meet the criteria of a hardship as the request appeared to be more about convenience than an actual hardship. Complainant notably did not request a different post of duty to treat a medical condition; rather, she sought a shorter commute. The Director had the request forwarded to the Federal Occupational Health Services and advised Complainant to seek an accommodation through the Agency’s reasonable accommodation process.4 With respect to claim (2), S1 stated that on August 14, 2019, prior to seeing the more recent August 12, 2019 work status report, she informed Complainant that based on the work status report dated August 9, 2019, Complainant was responsible for getting herself to the workplace, and management would be able to accommodate any workplace physical restrictions or limitations as specified by her podiatrist when she returned to work. The record reveals that S1 was informing Complainant that management would accommodate her restrictions if she were able to come to work. As to claim (3), S1 explained that Complainant provided her with only the last page of a five-page disability insurance form. S1 then contacted Complainant’s private disability insurance company to understand the consequences of her signing the form without seeing how the first four pages were completed. There is no evidence that S1 sought or received any confidential medical information. Finally, regarding claim (4), S1 explained that none of the information she provided to the Department of Labor representative contained any medical information, so there was no need to obtain a medical release from Complainant. S1 noted that the two work status reports do not contain medical information and the Department of Labor had requested more information after Complainant reported a non-industrial incident while she was already on partial leave under a workers’ compensation claim. We find that the record does not support a finding that the legitimate, non-discriminatory explanations offered by management for the alleged employment actions were a pretext or otherwise motivated by discriminatory or retaliatory animus. Complainant also failed to show that any of the alleged conduct was sufficiently severe or pervasive to constitute a hostile work environment. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decisions because the preponderance of the evidence does not establish unlawful discrimination, reprisal, or a hostile work environment as alleged by Complainant. 4 We note that Complainant did not allege that she was denied reasonable accommodation. 2020003890 & 2021001936 4 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). 2020003890 & 2021001936 5 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 December 7, 2021 Date