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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021000454 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marjorie L.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021000454 Hearing No. 510-2019-00376X Agency No. IRS-18-0873-F DECISION On October 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 8, 2020, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Tax Law Specialist, GS-9, at the Agency’s customer service call center in Jacksonville, Florida. On November 20, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Filipino), sex (female), color (Brown), age (67), and in reprisal for EEO-protected 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. 2 2021000454 1. Beginning in April 2017, Complainant was harassed culminating in a fifteen-day suspension between August 6, 2018 and August 21, 2018; and 2. the Agency denied Complainant official EEO time. On October 8, 2020, the Agency issued a final decision, based on the evidence developed during the EEO investigation, finding Complainant did not prove that she had been subjected to discrimination. The instant appeal followed. Complainant did not file a brief in support of her appeal. ANALYSIS AND FINDINGS Claim 1 - Harassment To prove her discriminatory 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, color, national origin, sex, age or prior protected activity. 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); Britany C. v. U.S. Postal Serv., Appeal No. 2019001456 (May 29, 2019). According to her sworn statement, Complainant accuses her direct supervisor (African American, black, female) of discriminatory and retaliatory harassment including but not limited to these actions: following Complainant into the union office and elsewhere, attempting to lower Complainant’s evaluation, spreading rumors that Complainant is having an affair with a co-worker, threatening Complainant with a 30-day suspension. Complainant further alleges that a co-worker (Asian American, male, under 40) was conspiring with SUPV and did things to intentionally bother her such as spitting in a trash can, being loud, touching Complainant and falsely complaining about Complainant’s conduct and asking Complainant for food and money. Finally, Complainant contends that call center manager (MGR) (Caucasian, white, male, age 61) failed to consider her rebuttal in effectuating Complainant’s fifteen-day suspension. Here, there was no testimonial or documentary evidence to support Complainant’s position that her she was mistreated because of her race, EEO activity, sex, age or national origin. Even Complainant herself stated that she was excluded from social groups for reasons unrelated to EEO statuses. For example, Complainant stated that her co-workers are jealous of her because she is petite and healthy while most of her co-workers are obese or overweight. 3 2021000454 The record further revealed that Complainant and the co-worker who she accused of harassing her had exchanged mutual accusations and sleights until management moved them to separated workspaces. Rather than a hostile work environment. Complainant has described a series of what Complainant has described is a personality conflicts with different co-workers which the Commission considers an “ordinary tribulation” of any workplace. Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). Moreover, Complainant has failed to evidence her argument that the suspension was unwarranted. The sworn statement from the call center manager (Caucasian, white, male, age 61) explained that Complainant’s documented misconduct justified the Agency’s fifteen-day suspension action. On four occasions, Complainant had disparaged co-workers to customers who had merely called Complainant seeking tax advice. Twice, Complainant had been disrespectful to her supervisor in her emails that had called her supervisor lazy and challenged her supervisor as lacking leadership skills. Furthermore, this was not Complainant’s first suspension. In 2008, Complainant had received a five-day suspension for other instances of unprofessional conduct. Claim 2 - EEO Official Time Denial EEOC Regulation 29 C.F.R. § 1614.605(b) provides the Agency shall give Complainant a reasonable amount of official time, if otherwise on duty, to prepare an EEO claim. The Commission has stated that an allegation pertaining to denial of official time states a separately- processable claim alleging violation of the EEOC’s regulations and does not require determination of a discriminatory motive. Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). This means EEOC has authority to remedy a 29 C.F.R. § 1614.605 violation without a finding of discrimination. However, allegations of denial of official time on EEO matters should not be processed in accordance with 29 C.F.R. § 1614.108, since the proper inquiry is not into motivation, but rather the Agency justification of why it denied Complainant any amount of official time. Id. EEO-MD-110 at Ch. 6 § VII(C)(5) pp. 6-19 (Aug. 15, 2015) requires that agencies inform complainants or their representatives of how to claim or request official time. Id. Ideally, Complainant and the Agency should have attempted to reach a mutual understanding as to reasonable amount of official time Complainant could use to prosecute his EEO matter. EEO-MD-110 at Ch. 6 § VII(C)(1) pp. 6-17. In the present matter, at one point, Complainant had requested EEO time from Agency management. Then the Agency granted Complainant two hours of official duty time to work on her EEO cases. Next, Complainant emailed a manager that the two hours had proved insufficient because Complainant had been constantly interrupted by insignificant matters. A manager stated she had had advised Complainant that business needs had to be taken into consideration on any official EEO time request. Although the record contained emails wherein Complainant discussed possible meetings with a lawyer or union representative, no evidence showed a decision from the Agency denying Compliant more official time for EEO purposes. 4 2021000454 Nothing showed that Complainant had expressly requested more official time beyond the two hours that the Agency had granted. Ultimately, without more, we must find that the official time that the Agency authorized for Complainant’s present EEO complaint was reasonable. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 5 2021000454 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 February 7, 2022 Date