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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020001186 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherri W.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020001186 Agency No. IRS-18-0848-F DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 22, 2019, 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 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-1805-06 Tax Fraud Investigative Assistant with the Agency’s Criminal Investigation Western Area Field Operation in Las Vegas, Nevada. On October 31, 2018, she filed a complaint alleging that she was discriminated against and harassed on the bases of her sex (female), national origin (Slovakia), disability (cancer), and in retaliation for prior protected activity when, beginning in February 2018 and continuing through October 2018, her supervisor: a. Failed to accommodate her need for days off to treat her serious medical condition; 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. 2020001186 2 b. Refused to timely sign her Family Medical Leave Act (FMLA) paperwork; c. Showed a disregard for her health and safety, including putting her in several life-threatening work situations in March 2018; d. Influenced her non-selection for a promotion in June 2018; e. Used her medical conditions and absences against her in her mid-year evaluation narrative; and f. On or around August 8, 2018, lashed out at her for insubordination and refusing to do her job, and compared her to another employee with the same medical condition. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. Complainant requested a final decision, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. In its final decision, the Agency found that regarding claim a, the record revealed no examples of when Complainant was ever denied medically necessary leave or required to participate in tasks that violated her doctors’ recommendations. Regarding claim b, Complainant’s supervisor indicated that he never denied Complainant’s FMLA application or any of her requests for medical leave, but he admitted that he took eight business days to grant provisional approval, rather than the required five, while awaiting guidance from Human Resources on an issue. The record indicates that two weeks later, Complainant was approved for the statutory maximum of 480 hours of FMLA leave. With respect to claim c, the record indicates that Complainant, in violation of protocol, was left alone with a business owner who was under investigation during a search warrant operation on March 6, 2018. Also, the record indicates that Complainant was immediately released to seek medical attention when she alerted management that files, she was assigned to scan on March 15th, might have been contaminated. The Agency subsequently determined that the files were not contaminated, but nevertheless her supervisor scanned the documents himself. Regarding claim d, the Agency maintained that the selecting officials for both positions stated that they chose superior candidates from two pools of exceptionally qualified applicants. When comparing Complainant’s credentials with the three selectees, the Agency found that she had significantly less relevant work experience than two selectees and less relevant and advanced formal education than the third. According to the Agency, Complainant did not establish that she was “plainly superior” to the selectees and she did not establish that her supervisor influenced the selection decisions. Regarding claim e, the Agency denied Complainant’s assertion that her supervisor used her medical condition against her in her March 25, 2018, Mid-year evaluation when he wrote: 2020001186 3 You are very capable, [Complainant’s name], and I appreciate you in the unit. I know your health has prevented you from rising to your potential as it prevents you from a full-time presence. I am in hopes you can get back to full health and we can work together to get you back on board full-time as I could really use your talent and hard work full-time. I feel like you have the potential to be one of my very best and we as an FO [Field Office] need support staff of your abilities. According to the Agency, these words were not derogatory, and that the supervisor was explaining away Complainant’s underperformance at that point in the rating period and to encourage her going forward. Finally, with respect to claim f, in August 2018, Complainant’s supervisor asked when she would return to full duty, including engaging in search warrant operations. The supervisor told her that her previous excellent work performance was flagging and offered advice on how she could better balance her medical needs and workplace responsibilities, offering examples of how another employee with major medical issues managed to meet their professional obligations while under treatment. The Agency argued that Complainant’s supervisor’s comments were related to his official duties as the team manager and that his advice that reasonable accommodation did not excuse employees from performing the essential functions of their jobs was accurate and his attempt to help Complainant by providing examples of other employees in similar circumstances was appropriate. 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”). Assuming Complainant established a prima facie case of discrimination based on sex, national origin, disability, and retaliation for engaging in prior EEO activity, we do not find that she established that she was subjected to discrimination, denied a reasonable accommodation, or subjected to a hostile work environment. Regarding claim c, we find that an employee attempted to, and apparently did, alleviate the safety concern of Complainant. Furthermore, to the extent that Agency policy was not followed regarding the safety incident, Complainant has failed to show that discrimination motivated the Agency’s action. With respect claim e, we find that a fair reading of his comments indicates that the supervisor was attempting to encourage Complainant. 2020001186 4 The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Here, we find that the actions in this case did not involve such discriminatory motives. CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, 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. 2020001186 5 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 June 21, 2021 Date