Sylvia B.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120172390 (E.E.O.C. Oct. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sylvia B.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120172390

Hearing No. 440201600210X

Agency No. IRS160100F

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, the Agency’s June 2, 2017
Final Agency Decision (“FAD”) concerning an 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

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Supervisory Revenue Officer, IR-05, (or “Group Manager”), Small Business/Self-Employed
(“SB/SE”) Division, in Oakland Park, Illinois.

On February 21, 2016, Complainant filed an EEO complaint discrimination by the Agency on
the bases of race (black), national origin (Asiatic), sex (female), religion (Islam), color (brown),
age (55), and reprisal (engaging in prior protected EEO activity) 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.
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1. On November 10, 2015, Complainant’s first level supervisor (“S1”) rated her
performance level as “Met” on her FY 2015 Performance Review, which covered
the period between October 1, 2014 and September 30, 2015.

2. From January 2015 through December 2015, S1 subjected Complainant to
harassment by, among other things, denying her the necessary assistance to
manage a poor performer with a serious behavioral issue.2

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant requested a hearing. However, during the discovery phase of the pre-hearing
process, the assigned AJ properly denied Complainant’s hearing request as sanctions for multiple
instances of non-compliance with the AJ’s orders. The AJ remanded the complaint to the
Agency, for a Final Agency Decision (“FAD”) pursuant to 29 C.F.R. § 1614.110(b).

Complainant managed “Group 14” within the Agency’s Great Lakes Territory, with 8 Revenue
Officers as her direct reports. Among other things, Complainant was responsible for “planning,
organizing, directing, and controlling the work of subordinates engaged in field compliance
operations [previously referred to as “collections”].” Complainant’s rating official, S1, was a
Territory/Program Manager for the Great Lakes Territory (Caucasian, white, male, 50,
American/U.S. Citizen, Catholic) based in Farmington Hills, Michigan. S1 supervised a five
Group Managers including Complainant. Group Performance Ratings were based on a
“Manager Agreement” with 3 critical performance expectations: (1) the Retention Standard for
the Fair and Equitable Treatment of Taxpayers, (2) Responsibilities, and (3) Commitments.

In December 2014, a new Revenue Officer (“R1”) was assigned to Group 14, the result of a job
swap with another district. At the time, Complainant was on a 60-day detail as a Staff Assistant
to the Area Director. Upon her return in January 2015, Complainant was “bombarded with
interruptions daily throughout the day from all directions.” R1 allegedly mishandled taxpayer
checks, refused to work, and created a “hostile environment” among the Group 14 Revenue
Officers. On March 18, 2015, another supervisor notified Complainant that R1 kept
unnecessarily entering her employees’ work area, making them “uncomfortable…to the point
they would rather be on flex and/or relocate their seats.” The IT Area Manager sent Complainant
a lengthy email on March 23, 2015 describing R1’s “combative” phone manner, and complaints
from his IT employees. Complainant’s interactions with R1 included physical intimidation, as he
invaded her personal space despite her requests that he stop.

2 In its February 2, 2016 “Letter of Acceptance,” the Agency only identified Claim 1, however, a
fair reading of Complainant’s Formal Complaint indicates that she was also raising a claim of
harassment. Complainant reiterates and expands on the harassment allegations in affidavit
testimony taken during the EEO investigation, and on appeal. Therefore, we find it appropriate to
include Claim 2 for analysis.
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Complainant documented and reported R1’s problem conduct to S1 and Labor Relations almost
daily. She issued numerous Management Directives to R1, and lowered one of his categories to
“failed” on his Midyear Performance Review, with S1 as the concurring official. R1 was not
deterred, and filed grievances against Complainant. While S1 provided supporting testimony for
Complainant, he would not grant her requests for support in the form of additional personnel.
Instead, Complainant alleges that she was directed to speak with Group Managers from different
territories and S1 pushed her to take formal disciplinary action against R1.

In April 2015, Complainant and S1 met to discuss her Midyear Performance Review. S1 notified
Complainant that she was not meeting her individual “Commitments,” as well as Territory-wide
completion metrics. According to Complainant, during the meeting, S1 “pressured” her to
initiate a Performance Improvement Plan (“PIP”) for R1. Shortly afterward, Complainant took a
leave of absence on the advice of medical professionals as she was “mentally and physically
exhausted” from dealing with R1. When she returned in July 2015, the “Acting” Group Manager
stayed on for a month, but then Complainant was once again left without support. Complainant
felt S1 began to harass her and pressure her to take further disciplinary action against R1.
Although, by then, she had issued R1 a reprimand.

In November 2015, when S1 provided Complainant with her FY2015 Performance Review, she
was surprised to find her previous rating of “Exceeded” was lowered to “Met.” S1’s evaluation
summary accompanying his proposed rating provided, among other things, that she failed to
complete a PIP for R1 and another underperforming employee in her group, and “[she] was not
engaged with [her] employees.” On her self-assessment, Complainant emphasized that she
performed higher-level responsibilities during the 60-day detail assignment. While
acknowledging that she did not meet some of her “Commitments,” Complainant argued that she
was prevented from doing so because R1’s performance and disciplinary issues consumed her
time.

A Performance Review Board (“PRB”) consisting of three Territory Managers outside
Complainant’s management chain, reviewed S1’s rating and evaluation summary, as well as a
self-assessment narrative statement provided by Complainant. The PRB Chairperson contacted
S1, asking why Complainant was not rated “Exceeds” based on her detail. Afterward, the PRB
unanimously agreed that, among other things, “failure to successfully address the discipline and
performance issues and stop her Group's sliding productivity outweighed Complainant's 60-day
detail.” The PRB forwarded its concurrence with S1’s “Met” rating to Complainant’s second
level supervisor (“S2”), the Director of Field Collection Midwest Area (Caucasian, white,
female, 60, American/U.S. Citizen, no religion), based in Chicago, Illinois. S2 also concurred
that Complainant’s performance warranted a “Met” rating.

The Agency concluded in its FAD that Complainant failed to prove that the Agency subjected
her to discrimination as alleged. The instant appeal followed.

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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

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. United States Postal Serv.
Bd. of Gov. v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Here, the Agency’s legitimate nondiscriminatory reason for the alleged discriminatory act, a
rating of “Met” on Complainant’s FY2015 Performance Review, is that Complainant’s
performance was commiserate with a “Met” rating. Group 14’s productivity, accuracy, and
efficiency declined during the FY2015 rating period, and Complainant “failed to successfully
address disciplinary and performance issues,” related to R1. Also, the Agency aptly cites its 3-
step Performance Review process, meant to ensure objectivity and allow employee input.
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Assuming arguendo that Complainant established a prima facie case for race, color, sex, national
origin, and age discrimination, as well as reprisal, her complaint cannot succeed because she has
not demonstrated that the Agency’s proffered legitimate nondiscriminatory reason was pretext
for discrimination. Typically, pretext is established using comparator evidence, i.e. examples of
similarly situated employees outside of Complainant’s protected classes that receive favorable
treatment compared to Complainant. Alternately, because the alleged discriminatory act,
concerns a business decision, Complainant can establish pretext based on the reasonableness of
the decision. However, a determination on whether the alleged discriminatory act was
“reasonable,” is based on the Agency’s motivation, not its business judgment. See Loeb v.
Textron, 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). We have long held that an agency, as the
employer, has broad discretion to determine how best to manage its operations, and may make
decisions, including personnel decisions, on any basis except a basis that is unlawful under the
discrimination statutes. See Burdine; Furnco.

On appeal, Complainant concedes that she lacks comparator evidence, but disputes the
reasonableness of the Agency’s decision to issue her a rating of “Met” on her FY 2015
Performance Review. She attributes Group 14’s decreased efficiency and productivity to
difficulties related to R1’s conduct, arguing that S1 failed to provide her with sufficient support
for dealing with R1, namely another manager or support personnel. Complainant further argues
that the Agency unfairly disregarded her “appropriate and timely actions” toward resolving R1’s
conduct and performance issues.

As a Group Manager, Complainant was “accountable for productivity of [her] unit and [had]
primary responsibility for addressing that unit’s disciplinary and personnel problems.”
Complainant was hamstrung by two out of her eight subordinates who were underperforming,
causing Group 14 to miss target goals, and her ability to perform her duties was severely
hindered by R1-related interruptions. R1 closed only 1 case in 4 months and made mistakes on
multiple taxpayer checks, bringing down the Group’s accuracy metrics as well. Complainant
notes that R1’s Performance Reviews prior to his transfer that reflect ratings of “fails” in
multiple critical categories, indicating that others also experienced difficulties and decreased
productivity when he was on their team. Citing the experience of a Group Manager she spoke
with in a different Territory, Complainant asked S1 for personnel support, so that she could
manage both R1 and stay on top of her duties. S1 did not provide the requested support for
logistical reasons, instead, “pushing” Complainant to pursue a PIP. We do not find S1’s response
unreasonable, and see no indication of an underlying discriminatory motive.

We find that S1’s “Met” rating on Complainant’s handling of disciplinary issues speaks to a
difference of opinion on handling problem conduct by a subordinate, which concerns a business
decision. Throughout the relevant time frame, S1 repeatedly instructed Complainant to pursue
disciplinary action against R1, with the goal of terminating R1’s employment if his conduct and
performance issues persisted. Complainant acknowledges that S1 told her “on several occasions”
that he wanted R1 fired. By Complainant’s own account, S1 made it clear that if she initiated a
PIP for R1, she would receive an “Exceeds” on her Performance Review.
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On appeal, Complainant explains that she did not issue the PIP until months later because she
needed to compile supporting documentation, because “removal is a process” and “deviating
from the removal process can result in reversal.” Complainant’s argument that her “Met” rating
was unreasonable because the Agency failed to consider the “appropriate and timely actions” she
took instead of immediately issuing the PIP at S1’s request essentially asks the Commission to
insert itself into Agency business decisions. As Complainant has not offered evidence of
discriminatory motive, it is outside the purview of the Commission to determine whether her
“Met” rating was reasonable based on business considerations.

Harassment

It is well-settled that harassment based on an individual’s race, color, sex, national origin, and
age discrimination are actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
To establish a claim of harassment under those bases, Complainant must prove, by a
preponderance of the evidence, that because of her race, color, sex, national origin, age, an/or
reprisal for prior protected activity, she was subjected to conduct so “severe or pervasive” that a
reasonable person in Complainant’s position would have considered it “hostile or abusive.” See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Only if Complainant establishes both
elements, hostility and motive, will the question of Agency liability present itself. See
Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120131581 (July 18, 2014).

Allegations that describe “common workplace occurrences’ fail to state a claim of harassment
because unless it is reasonably established that the actions were somehow “abusive or offensive,”
such everyday events are not sufficiently “severe or pervasive” to offend the general sensibility
of an individual experiencing such occurrences in the workplace. Goines v. Dep't of Veterans
Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); See Wolf v. United States Postal Serv.,
EEOC Appeal No. 01961559 (July 23, 1998); Long v. Veterans Admin., EEOC Appeal No.
01950169 (Aug. 14, 1997).

To the extent that Complainant’s harassment allegation includes the “hostile work environment”
R1 created within Group 14, which she attributes to S1, we already determined that S1’s
legitimate nondiscriminatory reason for his decision not to provide Complainant with support
personnel was not pretext for discrimination. Therefore, the alleged results of S1’s action do not
state a claim of harassment.

Complainant’s remaining harassment allegations concern “common workplace occurrences.”
Specifically, her allegations that S1 “pressured” and “pushed” her to initiate a PIP for R1, and,
that upon her return from “stress leave,” S1 “began attacking [her] through managerial
directives, surveillance, shouting at [her], and counseling memos to suggest that [she] could not
perform [her] job,” all “common workplace occurrences.” We have previously found similar
allegations of increased scrutiny and micromanagement to be "common workplace occurrences.”
See Agnus W. v. United States Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016)
citing Gormley v. Dep't of the Interior, EEOC Appeal No. 01973328 (Feb. 18, 2000) (allegations
that a complainant’s supervisor “closely monitored” her work duties and time in and out of the
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office, and subjected her to harsher treatment than her colleagues described "common workplace
occurrences"). Additionally, the referenced directives, memos, “pressuring” and “yelling”
concern Complainant’s disciplinary and productivity related job responsibilities as Group
Manager. It is well established that a supervisor questioning or confronting an employee about
her work duties is a "common workplace occurrence,” even if done in a confrontational manner,
as alleged here. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18,
2000). Complainant has not provided evidence of hostility and discriminatory motive to show
that the common workplace occurrences described constitute harassment.

New Claims Raised on Appeal

On appeal, Complainant raises a new issue, alleging constructive discharge, attributing her
January 2016 “voluntary retirement” to the alleged harassment and hostile work environment she
continued to experience. Because Complainant did not include this claim in her Formal
Complaint, and there is no evidence that she raised it with the investigator before the conclusion
of the EEO investigation or with the AJ, we cannot adjudicate the matter in this decision.3 If
Complainant wishes to pursue a constructive discharge claim in an EEO complaint, then she
must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States
Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s Final Decision is AFFIRMED.

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.

3 Complainant’s Appellate Brief references a “Motion to Amend,” but it is not in the record and
there is no indication that the Agency or AJ issued a decision on said Motion.
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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.
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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

October 24, 2018
Date