EEOC Appeal 2020000776

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mirta Z.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000776
Agency No. IRS-18-0060-F
DECISION
On October 21, 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
September 27, 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.
ISSUE PRESENTED
The issue presented on appeal is whether Complainant established by preponderant evidence in
the record that she was subjected to discrimination based on race, color, disability, and/or
reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-0592-7 Tax
Examining Technician at the Agency’s Small Business/Self-Employed Service Center in Kansas
City, Missouri.
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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On October 1, 2017, a Supervisory Tax Examiner became Complainant’s first-line supervisor
(S1). At all times relevant to her complaint, a Department Manager was Complainant’s second-
line supervisor (S2), and a Program Manager was her third-line supervisor (S3).
Complainant is African-American, and her color is light brown. Complainant identified her
disability as a speech impediment, stuttering. Complainant averred that she is limited in her
ability to speak in front of a crowd, express herself clearly in her meeting, or speak clearly and
concisely over the telephone. Complainant alleged that, as a result of her stutter, management
believes that she has a learning disability. According to Complainant, she engaged in prior
protected activity by filing an EEO complaint in 2015 that named S2 as the responsible
management official. Complainant stated that, although S1 was not her supervisor in 2015, S1
was a witness for her EEO complaint.
Complainant attended Collection Statute Expiration Date (CSED) program training in October
2016. Complainant stated that, after she attended the training, she told her former supervisor
(FS1) that she was still having a hard time understanding the CSED program. According to
Complainant, she met with FS1 to discuss CSED on February 3, 2017. Complainant averred that
she became anxious during the discussion, which raised her blood pressure, culminating in
Complainant being taken to the hospital to be treated for high blood pressure.
According to Complainant, on September 21, 2017, S1 emailed her and stated that she would not
receive any more “read time” to learn CSED. Complainant averred that, although S1 was not her
supervisor at that time, she had explained to S1 that she was having trouble understanding CSED
and that it caused her anxiety. Complainant alleged that S1 told her that she had to get certified
on the CSED program because she had been fully trained. According to Complainant, she was
not the only employee who had trouble understanding the complexity of the CSED program.
Complainant alleged that, as of January 2018, at least eight of her coworkers who attended
CSED training were not CSED certified and had not been required to work CSED cases in more
than four months. S1 stated that all employees had been trained on CSED and would be required
to work the CSED program once they became certified.
Complainant stated that she was scheduled to take a vacation day on September 29, 2017.
Complainant averred that she told FS1 that she might come in to the office that day and that she
would call if she did not come in. According to Complainant, she called FS1 to tell him that she
was not coming in and to request leave for the already scheduled vacation day. On September 29,
2017, S1 issued Complainant a memorandum stating that Complainant had not completed her
time and attendance for the week because she did not input her leave for September 29, 2017.
The memo stated that it was a “courtesy” reminder to Complainant to timely and accurately
complete her time and attendance. According to S1, when she became the new supervisor of
Complainant’s team, she told the team members that she liked to document conversations in
emails and memoranda to have a record of what was discussed.
On October 4, 2017, S1 forwarded the team an email with a reminder about the housekeeping
guidelines for the office.

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On October 10, 2017, S1 issued Complainant a memorandum for her failure to follow the
housekeeping guidelines. In the memorandum, S1 stated that Complainant used an electric
blanket during a training on October 3-4, 2017, and that Complainant did not unplug the blanket
when asked by the instructor. S1 averred that electric blankets violated the housekeeping
guidelines and asked Complainant to remove her electric blanket from the workplace. According
to S1, the reason for the memorandum was that Complainant had ignored the instructor’s request
to unplug the blanket, on top of the fact that the electric blanket violated the housekeeping
guidelines. 	According 	to 	Complainant, 	a 	Caucasian 	coworker 	(C1) 	who 	had 	Halloween
decorations in her cubicle that violated the guidelines was not issued a memorandum for failing
to follow the housekeeping guidelines. Complainant averred that C1 had two 36-inch skeletons
on the outside of her cubicle wall that S1 asked her to take down because the decorations
violated the fire code. Complainant stated that, when she asked C1 whether she had received
anything in writing, C1 told her that she had only received a verbal warning.
Complainant stated that, on October 24, 2017, S1 gave her a memorandum documenting an
Embedded 	Quality 	Review 	System 	(EQRS) 	review, 	which 	stated 	that 	Complainant’s
performance had dropped and that her performance appraisal could be affected. Complainant
averred that she asked why the review was in a memorandum and that S1 told her that it was her
practice to document such matters in memoranda and that S2 was aware of the matter.
Complainant stated that she reached out to the union. According to Complainant, S1 later asked
for the memorandum back and tore it up. S1 stated that she asked Complainant for the document
back in order to be consistent with other supervisors who did not issue memoranda for
performance matters after discussing the issue with S2.
According to Complainant, on October 31, 2017, S1 approached her to discuss the suspended
cases in her inventory. Complainant stated that she tried to explain how previous supervisors had
taught her to work these cases but that S1 interrupted her, talking over her and telling her that she
should know better and had been in her position long enough to know how to process cases.
Complainant alleged that S1 said, “I’m gonna kill you.” Report of Investigation (ROI) at 121.
Complainant stated that she was utterly shocked and amazed by S1’s remark and that she did not
feel safe and feared for her life. According to Complainant, S1 also said, “You gonna make me
kill you” before she left Complainant’s desk. ROI at 122. Complainant stated that, later on
October 31, 2017, S1 emailed her and told her to come to her office. Complainant alleged that, in
S1’s office, S1 said, “I could kill you” and gave her negative feedback on her work process. ROI
at 122.
S1 stated that she was talking to Complainant about her inventory on October 31, 2017.
According to S1, she told Complainant to ask the Lead Tax Examining Technician (C2) for help
and joked that Complainant could say, “[S1] is going to kill me if I don’t close this case.” ROI at
272. S1 averred that she was joking and stated that both she and Complainant laughed.
Complainant denied that S1 was joking when she said she would kill her. According to
Complainant, she does not have a friendly relationship with S1, and they do not joke with each
other. The record contains an October 31, 2017, email from one of Complainant’s coworkers
(C3) to a union representative.

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In the email, C3 stated that she was at her desk and could hear S1 “going off” on Complainant.
ROI at 189. According to C3, Complainant did not understand what S1 was talking about, and
S1 was “talking to her like a dog…bullying her.” Id.
Complainant averred that she reported S1’s threats to kill her to the Treasury Inspector General
for Tax Administration (TIGTA). TIGTA investigated Complainant’s report that S1 threatened
to kill her. S1 stated that she was interviewed by TIGTA on November 3, 2017. On November
20, 2017, TIGTA forwarded its report of investigation to the U.S. Attorney’s Office, which
declined to prosecute S1 due to lack of federal interest. S1 stated that, as a result of
Complainant’s report to TIGTA, she was given a coaching mentor to work on communicating
with her subordinates and was required to take training on communication. According to S2,
although she had not observed S1 harass Complainant, she knew that S1 struggled with effective
communication. S3 stated that S1’s tone can come off as rude and added that S1 has been
counseled for unprofessional behavior.
Complainant averred that S1 attempted to provide side-by-side instruction on CSED with her on
November 15, 2017. Complainant alleged that she was uncomfortable with the situation after S1
had threatened to kill her. Complainant stated that she was nervous and scared to have S1 sitting
behind her. According to Complainant, S1 later issued her a memorandum about the instruction,
noting that Complainant appeared uncomfortable and distracted and kept pulling her coat and
scarf on and off. The record contains a November 15, 2017, memorandum from S1, which
discussed the errors Complainant made, noted that Complainant did not ask for help, and added,
“You appeared to be distracted, pulling your coat and scarf on and then taking the coat off and
turning your desk fan on, while shuffling your notes on your desk.” ROI at 157.
Complainant stated that S1 gave her a mid-year evaluation on January 5, 2018. According to
Complainant, S1 told her that her performance had declined in several areas and warned, “One
more bad review will kill you.” ROI at 136. S1 stated that she told Complainant, “another error is
going to kill your accuracy.” ROI at 272. According to S2, the goal was for employees to reach
93 percent customer accuracy, but Complainant’s customer accuracy was 57.1 percent from
October 1, 2017, through February 15, 2018.
On December 14, 2017, Complainant filed an EEO complaint, which she subsequently amended,
alleging that the Agency discriminated against her on the bases of race (African-American),
color (light brown), disability (speech impediment), and reprisal for prior protected EEO activity
(prior EEO complaint) when she was subjected to harassment, including when:
1. 	Since October 1, 2017, management continually issued her memoranda for work
performance issues, required her to work a difficult program not required of all
employees, threatened to lower her performance evaluation, yelled at her, talked
over her, made belittling remarks to her, and made three threatening remarks to
the effect of, “I’m going to kill you”; and
2. 	On January 5, 2018, during her midyear review, S1 stated, “one more bad review
will kill you,” and Complainant continued to receive negative memoranda.

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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). 	Complainant timely requested a hearing
but subsequently withdrew her request. 	Consequently, 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. Neither Complainant nor the Agency submitted a statement or brief
regarding the appeal.
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”).
Complainant alleged that she was subjected to harassment based on race, color, disability, 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).
Upon review, we find that there is no evidence in the record that the alleged harassment was
based 	on 	Complainant’s 	race, 	color, 	disability, 	or 	prior 	protected 	activity. 	Although 	S1
inappropriately referenced killing Complainant if she did not complete her work, the record
reflects that S1 had an overall communication problem. Numerous members of Complainant’s
team 	also 	complained 	about 	S1 	being 	rude, 	micromanaging 	employees, 	picking 	on 	her
subordinates, and creating a negative work environment.

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This indicates that, although problematic, S1’s conduct does not violate Title VII or the
Rehabilitation Act. See Office of Personnel Mgmt., EEOC Appeal No. 0120150249 (Sep. 23,
2016) (anti-discrimination statutes protect employees from discriminatory harassment but “do
not protect against adverse treatment due simply to a supervisor’s personality quirks or autocratic
attitude”). Accordingly, we find that Complainant has not established by preponderant evidence
in the record that she was subjected to discriminatory harassment.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final decision because the
preponderance of the evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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, 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).

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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
November 16, 2020
Date