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

Equal Employment Opportunity Commission

Aug 19, 2020

2019004114 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019004114 Agency No. IRS-18-0662-F DECISION On June 4, 2019, 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 May 7, 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. 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-1811-13 Criminal Investigator/Special Agent in the Agency’s Criminal Investigation Division in Houston, Texas. Complainant’s first-line supervisor was a Supervisory Special Agent (S1), her second-line supervisor was the Assistant Special Agent in Charge (S2), and her third-line supervisor was the Special Agent in Charge (S3). Complainant is an African-American female. Complainant averred that she engaged in protected activity on July 24, 2018, when she testified at a Merit Systems Protection Board (MSPB) hearing concerning the Agency’s removal of an African- American female Criminal Investigator/Special Agent (C1). 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. 2019004114 2 According to Complainant, on April 17, 2018, she received an automated email that stated that her annual performance evaluation was awaiting her signature. Complainant stated that normally her supervisor would solicit a self-evaluation and hold a meeting to discuss her rating of record before she would be asked to sign the evaluation. Complainant averred that she had planned to submit a self-evaluation for this rating but was not given the opportunity to do so. Complainant alleged that a male Special Agent (C2) told her that S1 asked him to prepare a self-evaluation and set a time to discuss the evaluation before he issued the rating. Complainant stated that she believed other male coworkers were given the opportunity to provide a self-evaluation of their performance to S1. S1 stated that a self-evaluation is optional. According to S1, he verbally told Complainant that she could provide a self-evaluation on April 6 and 11, 2018. S1 averred that he attempted to discuss Complainant’s evaluation with her on April 19 and 26, 2018, but she declined. S1 stated that on May 25, 2018, S3 told him that Complainant’s evaluation was overdue and needed to be signed before the end of the month. S1 averred that Complainant was scheduled to be on leave and that he chose the “employee unavailable to sign” option. Complainant denied that S1 solicited a self-evaluation or asked her to discuss her evaluation other than asking her on May 25, 2018, if she had signed her evaluation. The Houston Criminal Investigation Division moved to a new office building during the summer of 2018. According to S1, he told the Special Agents that they would be required to work weekend shifts on June 23-24, July 21-22, and/or August 4-5 to help with the move. S1 stated that on May 24, 2018, he solicited volunteers for the June weekend and that Complainant responded that she was not available at all that weekend. On May 25, 2018, S1 emailed Complainant and asked her to work the morning shift on Saturday, July 21, 2018, and the afternoon shift on Sunday, July 22, 2018. Complainant responded that she could not work any Saturday mornings, and S1 stated that he would schedule her for the afternoon shifts. On May 30, 2018, Complainant volunteered to help with moving on the afternoon of Thursday, July 19, 2018, and on the afternoon of Friday, August 3, 2018. On May 30, 2018, S1 sent the Special Agents a schedule of the weekend shifts. Complainant was scheduled to work the afternoon shift on July 21, 2018, and both the morning and afternoon shifts on Sunday, August 5, 2018, for a total of 13.5 hours. According to Complainant, this schedule showed that she was scheduled to work more weekend shifts than anyone else. Shifts varied in length from 3.5 to 6.5 hours. On June 11, 2018, Complainant informed S1 that she could no longer work on June 21, 2018. On June 11, 2018, S1 sent Complainant an email that stated that she was the only Special Agent not working on any of the three weekends, which he characterized as “unacceptable.” Complainant responded to S1, noting that she was already scheduled to work two shifts on Sunday, August 5, 2018, and telling S1 that he could also schedule her to work the afternoon shift on Saturday, August 4, 2018. S3 stated that he was contacted by an Agency Attorney (A1) after Complainant testified at C1’s MSPB hearing on July 24, 2018. According to S3, A1 informed him that she had to impeach Complainant’s testimony. 2019004114 3 A1 indicated that Complainant testified that she had been conducting interviews with C1 in the field on a certain date, when contradictory contemporaneous records that showed Complainant had been participating in all-day firearms training on the date in question. S3 referred the matter to the Treasury Inspector General for Tax Administration (TIGTA). S3 averred that he decided to place Complainant on temporary restricted duty pending the inquiry because her conduct cast doubt on her judgment, credibility, honesty, and integrity. According to S3, a critical element of the Special Agent position is providing credible testimony in court. On July 27, 2018, S3 issued Complainant a memorandum, which stated that she was being placed on temporary restricted duty pending a management inquiry into alleged misconduct. According to Complainant, she was placed on temporary restricted duty in retaliation for testifying at C1’s MSPB hearing on July 24, 2018, and for participating in a Field Office Review and Program Evaluation on July 25, 2018. According to Complainant, she told the individual interviewing her for the program evaluation that S1 and S3 discriminated against African- American females. Complainant alleged that S1 could hear her during the program evaluation interview because he was sitting right outside the office. S1 denied sitting outside the office during the program evaluation interviews or having knowledge of Complainant’s statements provided as part of the program evaluation. S3 stated that the program evaluation had nothing to do with Complainant being placed on temporary restricted duty. According to S3, the sole reason for placing her on temporary restricted duty was to ensure public confidence while TIGTA investigated Complainant’s alleged perjury. As a result of her temporary restricted duty placement, Complainant was relieved of her Agency- issued weapon and could not participate in a number of regular job duties. Complainant was required to relocate to a workspace on a different floor that was right outside S1’s office, and she completed various administrative duties as assigned by S1. Because she was on temporary restricted duty in August 2018, Complainant did not work any weekend hours to help with the move. According to the record, S1 and the six male Special Agents worked between three and 14 weekend hours related to the move. On November 2, 2018, S1 emailed Complainant and asked her to sign and return her Supervisory Special Agent (SSA) Workload Review without scheduling a meeting to discuss the review. Complainant alleged that supervisors always schedule a discussion. Complainant also alleged that S1 completed the review in a cursory manner, responding “N/A” in many areas of the form or that Complainant was on temporary restricted duties in several areas. According to S1, because of Complainant’s placement on temporary restricted duty, she was unable to participate in most of the review items. S1 stated that the workload reviews measure Special Agents in terms of maintaining their Agency vehicle and Agency weapon and participation in different programs. S1 averred that Complainant’s vehicle and weapon were taken away from her and that she was not allowed to participate in investigations or certain programs and trainings. On November 8, 2018, S1 emailed his subordinates, asking them to input their time and attendance for the pay period that day by 2:30 p.m. 2019004114 4 On November 9, 2018, Complainant emailed S1 at 1:37 p.m. and requested an hour of leave for November 9, 2018, from 12:30 p.m. to 1:30 p.m. S1 stated that employees are supposed to request leave in advance rather than after the fact. According to S1, he looked for Complainant multiple times from 1:40 p.m. to 2:45 p.m. because he would have to adjust her time and attendance for the pay period, but he stated that she was not at her desk from 2:45 p.m. S1 averred that he assumed that Complainant had taken two hours of leave, so adjusted her time and attendance to reflect two hours of leave. On November 9, 2018, Complainant emailed S1 and told him that he had entered her leave incorrectly. S1 responded, asking Complainant what time she had gotten back to her desk and whether she had been at her desk. Complainant told S1 that she had been speaking to two Special Agents near their desks. On November 14, 2018, S1 told Complainant that she should request an adjustment for November 9, 2018, but that in the future Complainant would need to email him if she would be away from her desk for more than 15 minutes. According to S1, he made this request because Complainant was not allowed to assist Special Agents with investigations while she was on temporary restricted duty. Procedural History On August 9, 2018, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity (MSPB hearing testimony) when: 1. On April 17, 2018, she was notified that her evaluation was awaiting her signature, even though she had not been asked to submit a self-evaluation and her evaluation had not been discussed with her; 2. On June 11, 2018, she was informed that she had to be available for weekend duty for the office’s move to another building, even thought she was already scheduled to work more shifts than anyone else in her group; 3. On July 27, 2018, she was placed on temporary restricted duty pending a management inquiry into her allegedly making false statements following her testimony at a MSPB hearing related to the removal of S1 and her statement during a program evaluation that she believed management engaged in discrimination; 4. On November 2, 2018, management sent her an SSA Workload Review to sign and return without discussion; and 5. On November 9, 2018, her one-hour leave request was entered in the timekeeping system as two hours of leave. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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. The instant appeal followed. 2019004114 5 Complainant makes no contentions on appeal, but she included a copy of a Wednesday, June 13, 2018, email from S1 to C2, which encouraged C2 to complete a self-assessment by Friday, June 15, 2018. C2 forwarded the email to Complainant on May 29, 2019. 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 (EEO MD-110), 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 To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that she was subjected to discrimination when she was asked to sign her evaluation without the opportunity to provide a self-evaluation or discuss the evaluation with S1. The Agency’s legitimate, nondiscriminatory explanation is that S1 verbally reminded Complainant to submit a self-evaluation and asked to discuss her evaluation with her. As evidence of pretext, Complainant denies that S1 asked her for a self-evaluation and contends that S1 asked her male counterparts to provide self-evaluations. For the first time on appeal, Complainant provides a copy of a June 13, 2018, email from S1, which asked C2 to provide a self-evaluation for his annual performance evaluation. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See EEO MD-110 at Ch. 9, § VI.A.3. Complainant has not provided any explanation as to why this evidence was not available prior to or during the investigation of her complaint. 2019004114 6 We find that Complainant has not established by preponderant evidence that the Agency’s legitimate, nondiscriminatory explanation is pretextual. Even if we were to consider the evidence as timely submitted, we would still find that Complainant failed to show that the Agency’s action was motivated by discrimination. Complainant also alleged that she was discriminated against when S1 asked her to volunteer for an additional weekend shift even though she was scheduled to work more shifts than her coworkers. The Agency’s legitimate, nondiscriminatory reason for asking Complainant to volunteer for a weekend shift was that Complainant said she could no longer work as scheduled on July 21, 2018. Complainant contends that this is evidence of disparate treatment by S1 because he mistakenly indicated that she was no longer working any weekend shifts when in fact she was scheduled for two weekend shifts on August 5, 2018. However, a mistake made by an agency is not evidence of pretext unless there is evidence that the mistake was based on a complainant's protected classes. See Vickey S. v. Dep't of Defense, EEOC Appeal No. 0120112893 (Nov. 17, 2015); Hsieh v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120980 (June 4, 2012); Carroll v. Dep't of Justice, EEOC Appeal No. 01A20985 (Jan. 21, 2003). The record is devoid of evidence that S1 made this mistake because of Complainant’s race, sex, or prior protected activity, and Complainant has not otherwise established pretext for discrimination. Complainant alleged discrimination with respect to being placed on temporary restricted duty. S3 stated that he placed Complainant on temporary restricted duty while TIGTA investigated whether she had committed perjury at the MSPB hearing. Complainant denied that her testimony at the hearing was contradictory, and she cites the temporal proximity between the MSPB hearing, the program evaluation, and the temporary restricted duty placement as evidence that she was placed in that status in retaliation for testifying at C1’s MSPB hearing2 and for accusing S1 and S3 of discrimination during the program review interview. However, there is no evidence in the record that Complainant’s participation in the program evaluation was a factor in being placed on temporary restricted duty. Moreover, the preponderance of the evidence in the record establishes that S3 issued the memorandum to Complainant because she had potentially committed perjury, not because she testified on behalf of C1 at the hearing. Accordingly, Complainant has not met her burden of establishing pretext. Complainant alleged that she was discriminated against when she was given a cursory SSA Workload Review and was asked to sign it without first discussing it with S1. S1’s legitimate, nondiscriminatory reason for the brief workload review and for not scheduling a meeting was that most areas in the workload review did not apply while Complainant was on temporary restricted duty. Complainant attempts to show pretext because workload reviews had not been conducted in such a manner in the past. However, past practice does not establish pretext in this case, because Complainant was not on temporary restricted duty at the time. 2 There is no evidence in the record whether C1 raised claims of discrimination in her MSPB claim. We will assume, without so deciding, that Complainant’s participation in the hearing constituted protected EEO activity. 2019004114 7 Finally, Complainant alleged that she was subjected to unlawful discrimination when S1 input her one-hour leave request as two hours of leave. S1 stated that he entered two hours of leave because he could not find Complainant at her desk. Complainant argues that other Special Agents were given the benefit of the doubt when they were not at their desks. However, Complainant has not established that any male Special Agent requested leave after the leave was taken instead of before the need for leave arose and were away from their desks for extended periods of time while on temporary restricted duty. We find that Complainant has not established that the Agency’s proffered legitimate, nondiscriminatory reason is a pretext for discrimination based on race, sex, and/or reprisal. Hostile Work Environment Complainant also alleged that she was subjected to a hostile work environment based on race, sex, and reprisal. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In addition to the allegations discussed as disparate treatment, Complainant alleged that she was harassed when S1 told her that it was “unacceptable” that she would not work any weekend shifts and when S1 told her she needed to notify him when she would be away from her desk for more than 15 minutes at a time. There is no evident connection between the alleged harassment and Complainant’s race, sex, and/or prior protected activity. Accordingly, Complainant has not established by the preponderance of the evidence in the record that she was subjected to a discriminatory hostile work environment. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 2019004114 8 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. 2019004114 9 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 August 19, 2020 Date