[Redacted], Liz M., 1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2020000403 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liz M.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000403 Hearing No. 410-2019-00062X Agency No. IRS-18-0172-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 4, 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. and 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 order. ISSUE PRESENTED The issue is whether the AJ properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her disability or in reprisal for protected EEO activity. 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. 2020000403 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Management and Program Analyst/Department Manager at the Agency’s Small Business/Self- Employed, Automated Collection Service (ACS) Unit in Chamblee, Georgia. On May 3, 2017, the Agency opened a vacancy for the Senior Manager Readiness Program (Readiness Program), under announcement number 17CW2-SBM0500-0340-1-KC. Candidates would remain in their current positions but participate in a twelve-month training and development program. Report of Investigation (ROI) at 351-8. On or about June 27, 2017, Complainant was interviewed for the program, and on or about July 7, 2017, Complainant was informed that she was not selected. ROI at 391, 431. On or about October 24, 2017, Complainant received her annual performance rating with an overall rating of “Met.” ROI at 321-2. Complainant filed a grievance alleging that she received an “unfair” rating. Complainant stated that her first-line supervisor (S1) appeared to have used Complainant’s mid-year assessment, instead of her annual self-assessment for her evaluation. Complainant argued that the rating was “unreasonably low” and did not properly reflect her performance, and she requested that her rating be changed to “Exceeded.” ROI at 326-9. On November 27, 2017, the Performance Review Board Chairperson (PRBC) informed Complainant that, after reviewing the case documents, she did not provide sufficient information to substantiate that her performance exceeded her commitments. ROI at 330-1. Complainant appealed PRBC’s decision, which was denied by the Consolidated Performance Review Board Chairperson (CPRBC). ROI at 333-5. On March 29, 2018, Complainant emailed S1 to request a reason for her non-selections for detail opportunities. S1 responded that she offered Complainant a detail opportunity, which would have started on April 29, 2018; however, Complainant initially stated that she was not interested, but requested additional time to consider the offer. S1 stated that Complainant did not email a decision, and S1 followed up by texting Complainant twice, who did not respond. As such, S1 informed the Operations Manager (OM) to consider another candidate. ROI at 336. EEO Complaint On March 21, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on disability (Visually Impaired/Legally Blind) and in reprisal for prior protected EEO activity (prior EEO complaint number IRS-14-0317-F and participation in other employees’ EEO complaints) when: 1. on October 10, 2017, Complainant received a rating on her annual appraisal that she said was lower than it should have been and did not reflect her work performance, and the rating was not changed after she filed a performance grievance on November 27, 2017; 2020000403 3 2. on December 29, 2017, and March 14, 2018, Complainant was denied a temporary promotion to ACS Operations Manager, and on April 29, 2018, she was denied a detail; 3. on June 15, 2015, under 15CE4-WIM0505-SMRP-01-ED, and on May 3, 2017, under 17CW2-SBM0500-0340-1-KC, Complainant was denied opportunities to participate in the Readiness Program;2 and 4. on unspecified dates, Complainant was subjected to various other harassing acts by management officials. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 23, 2019, the Agency filed a motion for a decision without a hearing, which Complainant opposed. The Agency argued that Complainant did not establish a prima facie case of discrimination based on her disability or in reprisal for protected EEO activity. In addition, the Agency argued that management officials articulated legitimate, nondiscriminatory reasons for their actions and that Complainant offered no evidence to show pretext, or otherwise cast doubt on the Agency’s articulated nondiscriminatory reasons for management’s actions. Regarding Complainant’s harassment claim, the Agency noted that Complainant clarified this allegation for the first time in her investigative affidavit by listing approximately 57 discrete acts, and that the first 18 alleged incidents were the subject of her prior EEO complaint, IRS-14-0317- F.3 Further, the Agency asserted that the complained of incidents were ordinary interactions between supervisors and subordinates; that management’s conduct was well within the bounds of management discretion; and that the incidents were not sufficiently severe or pervasive to rise to the level of a hostile work environment. On September 11, 2019, the AJ issued a decision without a hearing. The AJ stated that he reviewed the Agency’s motion, Complainant’s response, and the ROI to determine that there were no undisputed facts. The AJ stated that he agreed with the Agency’s statement of facts and legal analyses, and he adopted the Agency’s motion in its entirety. The AJ granted the Agency’s Motion for Summary Judgement on all claims. 2 The EEO investigator noted that Complainant provided the specific dates of this claim in her affidavit on April 30, 2018, and that due to timeliness, the Agency only obtained the documents related to the 2017 vacancy. ROI at 43, 48. In addition, we note that the record shows that Complainant was informed of her non-selection on or about July 7, 2017, and that the Agency opened the vacancy on May 3, 2017. 3 The Commission affirmed the Agency’s decision that Complainant did not establish that she was subjected to discrimination or harassment in Liz M. v. Dep’t of Treasury, EEOC Appeal No. 0120161992 (Jan. 9, 2018). 2020000403 4 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. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s contentions Through her attorney, Complainant argues that the Agency failed to address her claims based on the record, and that the Commission did her a disservice by not including a detailed analysis of their reason to issue the final order.4 Complainant asserts that an analysis provides a foundation for her to defend her claims. For claim 1, Complainant argues that her performance rating did not reflect her actual performance, and that S1 took information from her mid-year self-assessment and applied it to her annual review. Complainant asserts that this was contrary to Agency protocol and that S1 was required to apply the self-assessment provided by Complainant. Regarding claim 3, Complainant argues that she was “clearly qualified” for the Readiness Program, and that the Agency “neglected” to provide evidence to support its contention that Complainant was not the best qualified. Complainant asserts that “every couple of months,” S1 subjected her to some form of harassment. For example, Complainant states that S1 sent out an operational review with “negative, misleading, and false information” about Complainant, and that S1 texted Complainant stating that she should be working within five minutes of Complainant not working when she had technical issues while teleworking. In addition, Complainant states that she requested the ability to telework from August 13, through September 7, 2018. Complainant states that S1 only approved the request one day at a time, which was harassing. Complainant asserts that S1 is aware of her vision limitations and “has an issue with those with vision disabilities.” Complainant argues that she was subjected to a “lack of promotion, strict scrutiny and harsh treatment” that was severe and pervasive. Complainant requests that the Commission overturn the Agency’s final order and award her appropriate relief. Agency’s contentions The Agency argues that there is no evidence in the record to support Complainant’s claims of discrimination and that her enumerations of error are without merit. In response to Complainant’s allegation that the Commission failed to provide a detailed analysis in the final order, the Agency notes that the AJ agreed with the Agency’s statement of facts, and that Complainant did not cite to a single instance in which the AJ’s factual findings were not based on the evidence. Moreover, the Agency argues that Complainant failed to cite any evidence in the record that directly contradicts a finding of fact made by the AJ. Further, the Agency argues that Complainant failed to cite to any requirement that the AJ provide any more than what he did. 4 We note that the Agency issued the final order, not the Commission. 2020000403 5 Regarding Complainant’s allegation that the Agency failed to address her claims based upon the totality of the circumstances, the Agency asserts that Complainant simply restates her versions of the various events at issue in the case, without citing to any evidence. The Agency also notes that Complainant included a new alleged incident that occurred after the allegations or timeframe at issue and is contained nowhere within the record. The Agency requests that the Commission affirm its final order adopting the AJ’s decision without a hearing finding no discrimination. ANALYSIS AND FINDINGS Standard of Review 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Decision without a hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2020000403 6 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant stated that there were “multiple” genuine issues of material fact. However, Complainant did not specify these material facts, nor provide evidence to show that there were any genuine disputes. We note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). To the extent that Complainant asserts that the AJ erred by not providing a detailed analysis in his decision, we note that the AJ specified that he adopted that legal analysis in the Agency’s Motion for Summary Judgment, which was detailed and provided Complainant with a foundation to defend her claims. Considering all the facts and circumstances herein, we find that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). As an initial matter, we note that 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 Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). In her appeal, Complainant raised a new allegation of harassment related to a request to telework in August and September 2018. Should she wish to pursue this new claim, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date she filed her appeal (October 8, 2019), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date she receives this decision. 2020000403 7 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her disability and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that she gave Complainant a performance rating of “Met” because Complainant performed her day-to-day activities, which did not rise to the level of elevated performance. S1 specified that Complainant did not overcome any significant obstacles or implement any initiatives that had an impact on the organization or operation. S1 stated that Complainant received an “Exceeded” in the element of Commitments, but that overall, Complainant’s efforts were sufficient, but not impactful. ROI at 177. PRBC stated that the Performance Review Board determined that Complainant did not provide sufficient information to substantiate raising her performance rating. ROI at 231. CPRBC stated that Complainant’s activities related to Responsibilities were “generally ‘routine’ in nature” and that her performance was consistent with a “Met” rating. ROI at 240. Regarding claim 2, Complainant stated that generally, the Agency announced temporary positions, but that no solicitation was sent for the selections announced on December 29, 2017, and March 14, 2018. ROI at 83. The Director, Campus Collection stated that management reserved the right to non-competitively select employees for temporary promotions that do not exceed 120 days, and that Complainant served on a detail from October 1, 2017, through January 21, 2018, that was not announced. ROI at 220-1. S1 stated that she offered Complainant a detail/temporary promotion, which was expected to begin on April 29, 2018, and that when Complainant never provided a response, S1 advised OM to seek another candidate because she had not heard back from Complainant. ROI at 179-80. For claim 3, an Executive Officer (EO) stated that Complainant was not selected for the 2017 Readiness Program based on her resume and interview; specifically, Complainant’s interview revealed limited competencies in Leading Others, Leading Improvement, and Business Results. EO noted that Complainant received a score of five, out of a total possible score of 12, for her interview. EO stated that since Complainant was the only employee who made the Atlanta best qualified list, no selection was made for Atlanta. ROI at 250-1. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argues that S1 took information from Complainant’s mid-year self- assessment and applied it to her annual review, which was contrary to Agency protocol. However, Complainant raised this argument in her grievance and neither PRBC, nor CPRBC, supported Complainant’s contention. In addition, we note that Complainant did not provide any arguments to challenge the determinations by PRBC and CPRBC that she did not show that her performance rating should be changed from “Met” to “Exceeded.” 2020000403 8 For claim 3, Complainant argues that she was “clearly qualified” for the Readiness Program and that the Agency “neglected” to provide evidence to support its contention that Complainant was not the best qualified. However, the record contains the scores and notes from Complainant’s interview that show how she was evaluated. For example, Complainant was determined to have low competency in Leading Others, in part, because she did not provide a response to the question, “how do you establish rapport?” Complainant also received a low competency score in Business Results because she did not discuss the business results of the situation she discussed. ROI at 391- 5. Accordingly, we find that Complainant has not shown that the Agency’s proffered reasons were not worthy of belief. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find that Complainant did not show any evidence of unlawful motivation for the Agency’s decisions. As such, we find that Complainant did not establish that the Agency discriminated against her based on her disability, or in reprisal for protected EEO activity, for claims 1-3. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that Complainant belongs to a statutorily protected class based on her disability and prior EEO activity. Complainant stated that she was subjected to harassing verbal conduct from January 2013, through April 2018. For example, Complainant stated that in March 2018, Complainant had computer issues while teleworking, and that S1 texted Complainant to state that she should be working, and in April 2018, S1 emailed a report containing “negative, misleading, and outright false statements” to diminish her accomplishments. ROI at 93-100. However, we find that Complainant did not show that any of the complained of conduct was due to her protected categories. While Complainant argued that S1 “has an issue with those with vision disabilities,” she did not provide any evidence to support her assertion. To the extent that Complainant alleged that S1 sent out “negative, misleading, and false information” about Complainant, we note that she did not specify what information was negative, nor provide evidence to show that the information was false. 2020000403 9 In addition, we note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, we find that the incidents were not objectively offensive, and that they occurred in the normal course of business. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her disability or in reprisal for protected EEO activity. 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her disability or in reprisal for protected EEO activity. 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. 2020000403 10 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. 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 January 14, 2021 Date