0120172247
03-05-2018
Sheila I.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheila I.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120172247
Agency No. IRS-15-1406-F
DECISION
On June 15, 2017, 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 September 13, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative, Wage and Investment Service Center at the Agency's Accounts Management facility in Kansas City, Missouri.
On August 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (Caucasian), sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when:
1. Management denied her requests for advance annual and sick leave and charged her Absent Without Leave (AWOL).
2. Management denied her requests for credit hours and religious compensatory time off.
3. Management issued Complainant a memorandum of reprimand.
4. Management intentionally denied Complainant's Continuation of Pay after a June 26, 2015 work injury.
5. Complainant was denied her provisional Family & Medical Leave Act (FMLA) request resulting in her being charged AWOL on several occasions between September 11 and October 7, 2015.
6. On December 21, 2015, Management asked her to re-submit Form 10911 so her request to temporarily change her tour of duty could be processed.
The matter was accepted for investigation.
During the investigation, on December 23, 2015, the Investigator submitted a request for Complainant to respond to inquiries and provide an affidavit responding to the Investigator's interrogatories. Complainant did not respond. In his request, the Investigator provided Complainant with a warning that the failure to comply could result in dismissal of the matter pursuant to 29 C.F.R. � 1614.108(f). Complainant failed to respond. The Investigator provided Complainant an extension from January 5, 2016 to January 11, 2016, and again until February 29, 2016. The Investigator continued the investigation collecting affidavits from Agency Officials. The Investigator also provided Complainant with the opportunity to rebut the affidavits he obtained from Management. The Investigator emailed Complainant stating that she needed to provide her affidavit for inclusion in the investigation. Complainant responded to the Investigator asserting that someone had broken into her drawer and had taken her affidavit. The Investigator provided Complainant an additional 10 days to respond until March 21, 2016. Complainant did not provide an affidavit by that date. By email dated May 2, 2016, Complainant stated that she was in the hospital from March 20, 2016 to April 13, 2016, and asked for an extension. The Investigator allowed Complainant until May 19, 2016, to respond. However, Complainant failed to comply with the request. The Investigator concluded the investigation without Complainant's affidavit.
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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Initially, the decision dismissed the matter, pursuant to 29 C.F.R. � 1614.107(a)(7), finding that the Agency provided Complainant with a written request to provide relevant information and Complainant failed to respond to the Agency's request within 15 days of her receipt of the Agency's request. The Agency provided Complainant with a notice indicating that the Agency would dismiss the complaint for her failure to respond. Complainant's response failed to adequately address the Agency's request. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7).
In the alternative, the Agency addressed the merits of Complainant's claims of discrimination. In response to claim (1), the Agency indicated that Complainant entered into a settlement agreement on March 5, 2015, which the Agency asserted resolved her being charged AWOL. As for claims (2) and (3), the Agency indicated that management officials provided legitimate, nondiscriminatory reasons for its actions to which Complainant failed to respond in order to establish pretext. Regarding claim (4), the Agency noted that Continuation of Pay is a decision made by the Office of Workers Compensation Programs (OWCP) which is part of the Department of Labor. The Agency argued that claim (4) should have been challenged with OWCP. Finally, in response to claim (5), the Agency noted that Complainant alleged discrimination with respect to FMLA. The Agency stated that Complainant was denied FMLA leave when she failed to provide required medical documentation. As such, the Agency asked Complainant to resubmit the form which was raised in claim (6). Based on the record as a whole, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant filed an appeal on October 13, 2016. In Sheila I. v. Dep't of Treasury, EEOC Appeal No. 0120170331 (March 24, 2017), the Commission dismissed the appeal. The decision noted that the appeal was part of a class of complaints that have been scheduled for global settlement discussions before the Merit Systems Protection Board (MSPB). Complainant had requested that EEOC Appeal No. 0120170331 be placed on hold until after the MSPB had an opportunity to mediate the claims as part of a global settlement. As such, we dismissed the appeal without prejudice and provided Complainant with the opportunity to re-file her appeal to this Commission within 30 days of her receipt of the MSPB's determination regarding her claims presented to that body.
On May 19, 2017, the parties reached a settlement agreement before the MSPB. However, the agreement did not resolve Complainant's EEO complaint. As such, on June 15, 2017, Complainant refiled the instant appeal, requesting that the Commission review the Agency's final decision finding no discrimination.
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").
Dismissal for Failure to Cooperate
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides that an agency may dismiss a complaint for failure to cooperate, or alternatively, adjudicate the complaint if sufficient information for that purpose is available. The regulation is applicable under the following circumstances: (1) the agency has provided the complainant with a written request to provide relevant information or to otherwise proceed with the complaint; (2) the request included a notice of the proposed dismissal for failure to respond within fifteen days of receipt of the request; and (3) the complainant either fails to respond to the request within fifteen days of receipt or the complainant's response does not address the agency's request. The Commission has held that the regulation is applicable, however, only in cases where there is a clear record of delay or contumacious conduct by a complainant. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (April 23, 1998); Anderson v. U.S. Postal Serv., EEOC Request No. 05940850 (Feb. 24, 1995).
The Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (April 12, 1990). It is only in cases where a complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has alleged a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (April 23, 1998); Kroten v. U.S. Postal Serv., EEOC Request No. 0590451 (Dec. 22, 1994). Here, the Investigator was able to conduct the investigation without an affidavit from Complainant. As such, we find that it is more appropriate to adjudicate Complainant's claims of discrimination and harassment rather than dismiss the complaint as a whole.
Dismissal for Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
In claim (4), Complainant alleged that she was denied Continuation of Pay, a benefit of workers' compensation. The proper forum for Complainant to raise challenges to actions stemming from an OWCP adjudicatory decision is within the OWCP process itself. See Mathew v. U.S. Postal Serv., EEOC Appeal No. 0120121481 (June 1, 2012) (proper forum for Complainant to have raised his challenges regarding the processing of OWCP paperwork and the denial of his continuation of pay were within the Department of Labor, which administers OWCP laws and procedures).
Dismissal for Settlement Agreement
In its final decision, the Agency dismissed claim (1) asserting that the claim fell within the purview of the May 5, 2015 settlement agreement. We note that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The Agency provided a copy of the settlement agreement at issue. The Agency stated that Complainant was charged with AWOL on May 15, 2015. The Agency noted that the settlement agreement released the Agency and Complainant of any claims or liability relating to events up to and including the execution of the settlement agreement. Upon review, we find that the Agency failed to show that the settlement agreement signed on May 5, 2015, resolved the charge of AWOL which occurred on May 15, 2015. We note that the Investigator investigated this claim and that a determination can be made on the merits of Complainant's claim of discrimination with respect to claim (1).
Disparate Treatment
To prevail in a disparate treatment claim as raised in claims (1), (2), (3), (5) and (6), 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 he 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 elements of the prima facie case are determined by the individual circumstances of each case and the bases of discrimination alleged; but regardless of the specific action at issue, Complainant may establish a prima facie case by demonstrating: 1) that she is a member of a protected group; 2) that she is similarly situated to employees outside of her protected group; 3) and that he was treated differently than those employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865 (6th Cir. 1975). However, it is not necessary for Complainant to rely strictly on comparative evidence in order to establish an inference of discriminatory motivation necessary to support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,3112 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (Sept. 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
Here, in the case at hand, Complainant did not provide the Investigator with any evidence or affidavit to support her claim of disparate treatment. The record indicated that the Investigator was in contact with Complainant and provided her with several extensions to file her affidavit. Complainant failed to comply with the requests by the Investigator. Therefore, we conclude that Complainant has not established a prima facie case of discrimination with respect to her race, sex, disability, and/or in retaliation for her prior protected activity.
Moreover, during the investigation, responsible management officials articulated legitimate, non-discriminatory reasons for the matters at issue. Regarding the denial of Complainant's request for advanced leave and the charge of AWOL in May 2015, management explained that she was not eligible to use advanced leave for routine medical appointments, she did not provide adequate medical documentation, and did not call in for leave use in a timely manner. With regard to the denial of religious compensatory time, management stated that Complainant did not seek the required pre-approval. Management officials stated they were not aware, and there was no record of the reprimand Complainant claimed she received. Management asserted that Complainant was granted some provisional FMLA leave, and ultimately denied the leave, because she did not submit the required medical documentation. Finally, with regard to the request for a temporary tour of duty change, the responsible management official stated that she asked Complainant to resubmit the request form (Form 10911) because her original form was unclear and incomplete, including when she was proposing to start. On December 23, 2015, Complainant's request was approved.
Based on her failure to participate in the investigation, Complainant has not proven, by a preponderance of the evidence, that these articulated reasons were a pretext for discrimination on any of the bases alleged.
Harassment
In addition to the incidents discussed above, Complainant asserted that these events were tantamount to harassment. 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, age and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
As already concluded above, there is no evidence to support a finding that Complainant's race, sex, disability, or prior protected activity played any role whatsoever in the matters at issue. When Complainant failed to provide any evidence to the Investigator to support her complaint, Complainant failed to prove that her race, sex, disability or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim.
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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
March 5, 2018
__________________
Date
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.
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