Petition for Writ of Certiorari — Jehan Semper, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.
Supreme Court briefNov 12, 2025
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IN THE
SUPREME COURT OF THE UNITED STATES
Jehan Semper, Pro Se
PETITIONER
vs
Yellen/Bessent, et al.
RESPONDENT(S)
PETITION FOR A WRIT OF CERTIORARI TO
United States Court of Appeals for the Tenth Circuit
APPENDIX A
General Docket
Tenth Circuit Court of Appeals
Court of Appeals Docket #: 25-4022
Nature of Suit: 2442 Civil Rights Employment
Semper v. Bessent, et al
Appeal From: United States District Court for the District of Utah - Salt Lake City
Fee Status: ifp granted
Case Type Information:
1) civil
2) USA as party
3) -
Originating Court Information:
District: 1088-2:1:22-CV-00070-TS
Trial Judge: Ted Stewart, -, Senior U.S. District Judge
Date Filed: 05/23/2022
Date NOA Filed:
02/21/2025
Date Rec'd COA:
02/21/2025
25_4022 / Semper v Yellen/Bessent, et al / Appendix 1 a
Docketed: 02/21/2025
Termed: 07/22/2025
02/21/2025
1
[11160402] Civil case docketed. Preliminary record filed. DATE RECEIVED: 02/21/2025 Notice of appearance due on
03/07/2025 for FNU Burnem, FNU Bushell, FNU Hill, Jordan Nielsen, Ogden City, Ogden Police, P. Thomas, Janet L.
Yellen and Eric Young. Notice of appearance due on 03/24/2025 for Jehan Semper. -[Edited 02/21/2025 by MLB to
correct to Utah case number][25-4022] [Entered: 02/21 /2025 12:34 PM]
02/21 /2025
2
[11160581 ] Minute order filed - Notice of appearance due on 03/07/2025 for Ryan Arbon, Weber County and Weber
County Sheriff. (Text Only - No Attachment) [25-4022] [Entered: 02/21/2025 04:17 PM]
02/24/2025
3
[111 60642] Jurisdictional review complete. Appellant's brief due on 04/07/2025 for Jehan Semper. Record on
appeal 10th circuit due 03/17/2025 [25-4022] [Entered: 02/24/2025 08:00 AM]
02/24/2025
4
[11160893] Entry of appearance submitted by Nathan Jack and Tiffany Romney for Appellee Janet L. Yellen for
court review. Certificate of Interested Parties: Yes. Served on 02/24/2025. Manner of Service: email. -[Edited
02/24/2025 by MLB to remove pdf from docket; entry filed on 02/24/2025][25-4022] NJ [Entered: 02/24/2025 02:11
PM]
02/24/2025
5
[11160906] Entry of appearance filed by Nathan Jack for Janet L. Yellen and Ms. Tiffany Romney for Janet L. Yellen.
CERT. OF INTERESTED PARTIES: n (all parties previously disclosed). Served on 02/24/2025. Manner of Service:
email [25-4022] [Entered: 02/24/2025 02:28 PM]
03/03/2025
6
[11162693] Consent to electronic service filed by filed by Jehan Semper. Served on 03/03/2025. Manner of Service:
email. [25-4022] [Entered: 03/03/2025 01:14 PM]
03/03/2025
7
[11162695] Entry of appearance filed by Jehan Semper. CERT. OF INTERESTED PARTIES: n. Served on 03/03/2025.
Manner of Service: email [25-4022] [Entered: 03/03/2025 01:15 PM]
03/05/2025
8
[11163366] Record on appeal filed. No. of Volumes: 1, Comments: Vol I - Pleadings. [25-4022] [Entered: 03/05/2025
11:40 AM]
03/07/2025
9
[11164266] Entry of appearance submitted by Richard Blake Hamilton; Janise Kekauoha Macanas for Appellees
Ryan Arbon, Weber County and Weber County Sheriff for court review. Certificate of Interested Parties: Yes. Served
on 03/07/2025. Manner of Service: US mail, email. -[Edited 03/10/2025 by MLB to remove pdf from docket; entry
filed on 03/10/25][25-4022] RBH [Entered: 03/07/2025 04:33 PM]
03/07/2025
10
[11164268] Entry of appearance submitted by Matthew D. Church, Kendra M. Brown for Appellees Ogden City, Ogden
Police, Eric Young, P. Thomas, Jordan Nielsen, FNU Bushell, FNU Hill and FNU Burnem for court review. Certificate of
Interested Parties: No. Served on 03/07/2025. Manner of Service: email. -[Edited 03/10/2025 by MLB to remove pdf
from docket; entry filed on 03/10/25][25-4022] MDC [Entered: 03/07/2025 04:39 PM]
03/10/2025
11
[11164322] Entry of appearance filed by Janise K. Macanas and Mr. R. Blake Hamilton for Weber County, Weber
County Sheriff and Ryan Arbon. CERT. OF INTERESTED PARTIES: n (all parties previously disclosed). Served on
03/10/2025. Manner of Service: email [25-4022] [Entered; 03/10/2025 07:55 AM]
03/10/2025
12
[11164326] Entry of appearance filed by Kendra M. Brown and Matthew David Church for Ogden City, Eric Young,
FNU Hill, Ogden Police, P. Thomas, Jordan Nielsen, FNU Bushell and FNU Burnem. CERT. OF INTERESTED PARTIES:
n. Served on 03/10/2025. Manner of Service: email [25-4022] [Entered: 03/10/2025 08:00 AM]
03/21 /2025
13
[11167899] Appellant brief filed by Jehan Semper. Served on 03/21 /2025 by email. Required 10th Cir. R. 28.2
Attachments Included? n. Appellees' brief(s) due 04/21/2025 for Ogden City, Ogden Police, Eric Young, R Thomas,
Jordan Nielsen, FNU Bushell, FNU Hill, FNU Burnem, Ryan Arbon, Weber County Sheriff, Weber County and Janet L.
Yellen [25-4022] [Entered: 03/21 /202511:22 AM]
04/18/2025
14
This entry has been removed from the docket. Brief refiled. [DD] [11175295] Appellee/Respondent's brief filed by
Ryan Arbon, Weber County and Weber County Sheriff. Served on: 04/18/2025. Manner of service: US mail, email.
Oral argument requested? No. Word/page count: 4782. This pleading complies with all required privacy and virus
certifications: Yes. [25-4022] RBH [Entered: 04/18/2025 08:13 AM]
04/18/2025
15
[11175308] Notice of appellees' deficient brief received from Ryan Arbon, Weber County and Weber County Sheriff.
See attached letter for specifics. Appellees' brief now due 04/21/2025 for Weber County, Ryan Arbon and Weber
County Sheriff [25-4022] [Entered: 04/18/2025 08:36 AM]
04/18/2025
16
[11175358] Appellee/Respondent's brief filed by Ryan Arbon, Weber County and Weber County Sheriff. Served on:
04/18/2025. Manner of service: US mail, email. Oral argument requested? No. Word/page count: 4782. This
pleading complies with all required privacy and virus certifications: Yes. [25-4022] RBH [Entered: 04/18/202510:54
AM]
04/18/2025
17
[11175370] Minute order filed - the brief submitted by Weber County appellees is accepted for filing. The parties will
be notified via separate docket entry if paper copies are required. (Text Only - No Attachment) [25-4022] [Entered:
04/18/202511:37 AM]
04/21/2025
18
[11175710] Appellee/Respondent's brief filed by Janet L. Yellen. Served on: 04/21/2025. Manner of service: email.
Oral argument requested? No. Word/page count: 2031. This pleading complies with all required privacy and virus
certifications: Yes. [25-4022] TR [Entered: 04/21/2025 01:22 PM]
25_4022 / Semper v Yellen/Bessent, et al / Appendix 1.1a
04/21 /2025
19
[11175833] Appellee/Respondent's brief filed by FNU Burnem, FNU Bushell, FNU Hill, Jordan Nielsen, Ogden City,
Ogden Police, P. Thomas and Eric Young. Served on: 04/21/2025. Manner of service: US mail, email. Oral argument
requested? No. Word/page count: 5962. This pleading complies with all required privacy and virus certifications:
Yes. [25-4022] MDC [Entered: 04/21/2025 05:24 PM]
04/21 /2025
20
[11175839] Minute order filed - the brief submitted by appellee Scott Bessent is accepted for filing. The parties will
be notified via separate docket entry if paper copies are required. (Text Only - No Attachment) [25-4022] [Entered:
04/21/2025 06:06 PM]
04/22/2025
21
[11175979] Minute order filed - the brief submitted by Ogden City appellees is accepted for filing. The parties will be
notified via separate docket entry if paper copies are required. Appellant's optional reply brief now due 05/12/2025
for Jehan Semper. (Text Only - No Attachment) [25-4022] [Entered: 04/22/2025 10:57 AM]
05/05/2025
22
[11179251] Minute order filed - the [231 reply brief submitted by appellant is accepted for filing. The partieswill be
notified via separate docket entry if paper copies are required. (Text Only - No Attachment) [25-4022]-[Edited
05/05/2025 by ART to add text] [Entered: 05/05/2025 04:28 PM]
05/05/2025
23
[11179252] Appellant's reply brief filed by Jehan Semper. Served on 04/26/2025 by US mail and 05/05/2025 by
email. [25-4022] [Entered: 05/05/2025 04:32 PM]
07/22/2025
24
[11198906] Affirmed. Terminated on the merits after submissions without oral hearing. Written, unsigned, and
published. Judges Tymkovich(authoring judge), Baldock, and Federico. Mandate to issue. [25-4022] [Entered:
07/22/2025 07:43 AM]
08/04/2025
25
[11202464] Plaintiff/Appellant Motion for Reconsideration/Rehearing filed by Jehan Semper. Served on 08/04/2025.
Manner of Service: email. [25-4022] [Entered: 08/04/2025 11:46 AM]
08/25/2025
26
[11208203] Order filed by Judges Tymkovich, Baldock, and Federico denying petition for rehearing filed by Appellant
Jehan Semper. [25-4022] -[Edited 09/11/2025 by AT to correct typo in attached order.] [Entered: 08/25/202511:56
AM]
09/05/2025
27
[11211821] Mandate issued. [25-4022] [Entered: 09/05/2025 07:56 AM]
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25_4022 / Semper v Yellen/Bessent, et al / Appendix 2a
Document: 24-1
Appellate Case: 25-4022
Date Filed: 07/22/2025
UNITED STATES COURT OF APPEALS
Page: 1
FILED
United States Court of Appea
Tenth Circuit
July 22, 2025
FOR THE TENTH CIRCUIT
Christopher M. Wolpert
Clerk of Court
JEHAN SEMPER,
Plaintiff - Appellant,
v.
SCOTT BESSENT, Secretary of the
Treasury; OGDEN CITY; OGDEN
POLICE; ERIC YOUNG, Police Chief
Ogden Police; P. THOMAS, Police
Officer; JORDAN NIELSEN, Police
Officer; FNU BUSHELL, Police Officer;
FNU HILL, Police Officer; FNU
BURNEM, Police Officer; RYAN
ARBON, County Sheriff; WEBER
COUNTY SHERIFF; WEBER
COUNTY; OFFICE OF CIVIL RIGHTS
AND DIVERSITY; INTERNAL
REVENUE SERVICE; SCOTT
WALLACE, Acting Field Director;
JAYLYNN MCQUIDDY, Operations
Manager; CYNTHIA J. CROWELL,
Department Manager; ALANA P.
MITCHELL, Manager; MELISSA D.
EVANS, Training Manager;
ZACHARIAH A. PINKSTON, On the
Job Instructor; MATTHEW G. HOWELL,
TIGTA; ANDREW V. AUSTIN, TIGTA;
ERIC C. REED, TIGTA; JONATHAN L.
PRUETT, TIGTA; JAMES JEWETT, IRS
Security Officer; NATHANIEL EYE, IRS
Security Officer,
No. 25-4022
(D.C.No. 1:22-CV-00070-TS)
(D. Utah)
Defendants - Appellees.
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ORDER AND JUDGMENT*
Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges.
Jehan Semper, proceeding pro se, appeals the district court’s dismissal of her
case against the Secretary of the Treasury and various city and county defendants.
The district court dismissed the lawsuit because Semper failed to exhaust her
administrative remedies before filing suit as required for Title VII claims, and she
asserted claims under criminal statutes, which do not provide a private cause of
action. Because we agree that the district court correctly dismissed Semper’s case,
we AFFIRM.
I.
Background
Semper was fired three months into her employment with the Internal Revenue
Service in Ogden, Utah. She submitted an Equal Employment Opportunity (EEO)
complaint, asserting discrimination claims based on her religion and age, and
retaliation for prior EEO activity—all in violation of Title VII of the Civil Rights Act
of 1964 and the Age Discrimination in Employment Act (ADEA). The Department
of the Treasury’s Office of Civil Rights and Diversity (OCRD) investigated the
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
2
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matter and denied all of Semper’s claims but one. In the Final Agency Decision
(FAD), the OCRD found that Semper’s protected EEO activity may have played a
part in her firing1 and therefore ordered the IRS to take certain actions, including to
reinstate Semper and provide the appropriate amount of backpay.
On May 23, 2022, Semper filed suit because she believed that the IRS failed to
comply with the FAD. According to Semper, the offer of reinstatement and backpay
was not compliant with the FAD’s terms. As a result, she sued the Secretary of the
Treasury (then, Jannet Yellen, now Scott Bessent), the Ogden City Defendants,2 and
the Weber County Defendants.3 She requested enforcement of the FAD through Title
VII and asked the court to “write a letter” to “the appropriate entity” about her “18
USC criminal allegations” for prosecution. Aplt. Br. at 3-4, 7.
The district court granted each defendant’s motions to dismiss.4 As for the
claims against the Secretary, the court held that Semper failed to exhaust her
1 According to the OCRD, the “timing of the drafting and issuance of the
Termination Letter” suggested a retaliatory motive by management, since all this was
done after discovering that Semper had “initiat[ed] an informal EEO complaint.” R.,
Vol. I at 958.
2 The Ogden City Defendants include Ogden City, Ogden City Police
Department, Chief Eric Young, Officer P. Thomas, Officer Jordan Nielsen, Officer
Bushell, Officer Hill, and Officer Bumem.
3 The Weber County Defendants include Weber County, Weber County
Sheriff, Ryan Arbon, and John/Jane Does Sheriff Deputies.
4 The Weber County Defendants moved to dismiss based on a motion for a
judgment on the pleadings under Federal Rule of Civil Procedure 12(c). As the
district court noted, “[w]e use the same standard when evaluating 12(b)(6) and 12(c)
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administrative remedies before filing suit. Under the relevant federal regulations, if
Semper believed that the IRS was not complying with the FAD, she was required to
notify the EEO Director of this in writing. If she was still dissatisfied with the IRS’s
attempt to resolve the matter, she should have appealed to the EEOC for a
determination on whether the agency was in compliance with the FAD. According to
the district court, Semper had not exhausted these remedies before initiating this
lawsuit. As for the Weber County and Ogden City Defendants, the court held that the
only relevant claims against them were criminal allegations, and those claims fail
because criminal statutes do not provide a private cause of action.
II.
Discussion
On appeal, Semper makes the same arguments that she made below. That is,
she seeks enforcement of the FAD and argues that the district court erred by failing
to refer her “18 USC Criminal Allegations” to the “appropriate entity” for
prosecution. She also argues that the lower court tried to “silence her by entering an
order limiting her filing of documents due to the large number of documents that
were being submitted. Aplt. Br. at 3.
A.
Secretary of the Treasury
Semper claims that the Secretary should be held liable for failing to comply
with the FAD’s terms and violating Title VII. The Secretary, in response, argues that
motions.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).
Thus, the district court analyzed the Weber County’s motion no differently than a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
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Semper’s claims should be dismissed because she failed to exhaust her administrative
remedies.
As the Secretary acknowledges, “[s]overeign immunity does not bar
employment discrimination claims against the federal government where the federal
government is the employer.” Freeman v. Raytheon Techs. Corp., No. 23-1133, 2024
WL 1928463, at *5 (10th Cir. May 2, 2024). But before resorting to the courts,
“[federal employees alleging discrimination or retaliation prohibited by Title VII.. .
must comply with specific administrative complaint procedures in order to exhaust
their administrative remedies. These procedures are set forth in Part 1614 of Chapter
29 of the Code of Federal Regulations.” Hickey v. Brennan, 969 F.3d 1113, 1118
(10th Cir. 2020) (citations omitted). Relevant here, “[i]f the complainant believes
that the agency has failed to comply with the terms of a settlement agreement or
decision” that she has received in her favor, the complainant must “notify the EEO
Director, in writing, of the alleged noncompliance within 30 days of when the
complainant knew or should have known of the alleged noncompliance.” 29 C.F.R.
§ 1614.504(a). If the Commission agrees that the “agency is not complying with a
prior decision ... the Commission shall notify the complainant of the right to file a
civil action for enforcement of the decision pursuant to Title VII, the ADE A,” and
others. 29 C.F.R. § 1614.503.
Semper has not followed all these procedures before filing suit. To be sure,
the Secretary agrees that Semper took the first step in the administrative process by
notifying the OCRD that the IRS was allegedly not complying with the FAD. But
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Semper remained unsatisfied with the IRS’s attempt to “resolve the matter.” 29
C.F.R. § 1614.504(b). Thus, and according to 29 C.F.R. § 1614.504(b), she should
have appealed to the EEOC for a formal determination on whether the IRS was
following the FAD. She did not do so. Because Semper failed to exhaust her
administrative remedies before resorting to the courts, her claim was properly
dismissed.5 See Timmons v. White, 314 F.3d 1229, 1232 (10th Cir. 2003) (In an
enforcement action, “the lack of an EEOC determination of non-compliance, which is
a prerequisite to such a suit,” is fatal).
The rest of Semper’s claims against the Secretary similarly fail. First, she
argues that the deadline to exhaust her administrative remedies should be tolled.
Putting aside that she does not assert any legal grounds for such tolling, this
argument fails for another reason. Namely, and as the Secretary explains, there is no
deadline to toll. Under the relevant guidelines, if Semper is “not satisfied with the
agency’s attempt to resolve the matter,” which was the case here, she can appeal to
the EEOC “35 days after ... she has served the agency with the allegations of
noncompliance.” 29 C.F.R. § 1614.504(b). Alternatively, if she has received a
formal determination of noncompliance, Semper “must file an appeal within 30 days
of his or her receipt of an agency’s determination.” Id.
Neither deadline is operative here. According to the Secretary, 35 days have
passed since Semper served the agency with allegations of noncompliance. Thus,
5 Because the district court properly dismissed Semper’s claims against the
Secretary, Semper’s motion for sanctions against the Secretary is moot.
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Semper is free to appeal to the EEOC, and there is no deadline under the relevant
guidelines to toll on that front. Moreover, because Semper has not received a formal
determination of noncompliance, the mandatory 30-day deadline does not apply.
Semper’s argument on tolling is therefore immaterial.
Second, Semper argues that the magistrate judge tried to “silence” her by
issuing certain conditions on her filing of documents. But Semper has waived this
argument because she did not directly challenge this order below. See Salcedo-Hart
v. Burningham, 656 F. App’x 888, 894 (10th Cir. 2016) (“To preserve an issue for
appellate review, a party must raise the issue in district court and seek a ruling.
When a litigant fails to raise an issue below in a timely fashion and the court below
does not address the merits of the issue, the litigant has not preserved the issue for
appellate review.”) (cleaned up). And even if it were not waived, this argument fails
on the merits. “District courts have broad power to manage their dockets, and their
exercise of that power is reviewed only for abuse of discretion.” In re Peterson, 338
F. App’x 763, 764 (10th Cir. 2009). Here, the district court temporarily barred
Semper from submitting new filings because of the sheer volume of her submissions.
The court noted that “[o]nce the existing motions have been decided, the court will, if
needed, lift the ban on filings.” R., Vol. I at 453. This decision falls within the
district court’s broad powers to manage its docket, and we discern no abuse of
discretion.
Finally, Semper argues that the Secretary, among others, violated 18 U.S.C.
§§ 241, et seq., which are criminal statutes. But as the district court held below,
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criminal statutes do not provide a private cause of action. See Henry v. Albuquerque
Police Dep’t, 49 F. App’x 272, 273 (10th Cir. 2002) (affirming the district court’s
dismissal of claims under 18 U.S.C. §§241 and 242 because “these criminal statutes,
like other such statutes, do not provide for a private civil cause of action”); Tucker v.
United States Ct. ofAppeals for Tenth Cir., 815 F. App’x 292, 294 (10th Cir. 2020)
(“Sections 241 and 242 are criminal statutes that do not provide for private civil
causes of action.”). Semper also argues that the district court should have referred
her claims to the appropriate entity for prosecution, but she cites no authority holding
that courts have the power to refer criminal allegations for prosecution. Her
argument therefore fails.
The district court correctly dismissed Semper’s claims against the Secretary.
Weber County and Ogden City Defendants
B.
Semper asserts similar claims against the Weber County and Ogden City
Defendants. To start, Semper clarified below that she was not asserting Title VII
claims against the Weber County and Ogden City Defendants. Nor could she, the
district court held, because she did not have an employment relationship with these
defendants.
Thus, the only relevant claims on appeal against the Weber County and Ogden
City Defendants are criminal allegations. According to Semper, the Weber County
and Ogden City Defendants violated 18 U.S.C. §§ 241, et seq., and Semper argues
that the district court should have referred her “18 USC criminal allegations” against
these defendants to the appropriate authorities for prosecution.
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This argument fails for the same reasons discussed above. First, criminal
statutes do not provide a private cause of action. See Henry, 49 F. App’x at 273.
Second, Semper cites no authority holding that courts have the power to refer
criminal allegations for prosecution. Semper supplies no arguments in response. We
find therefore that the district court correctly dismissed this claim.
Lastly, Semper makes two arguments in passing, neither of which have merit.
First, she asks this court to “toll the time to file civil legal actions against Weber
County and Ogden [City D]efendants.” Aplt. Br. at 10. But Semper provides no
reason for such tolling and cites no legal authority to support her claim. Thus, this
argument fails. Second, she argues that the district court “aided and abetted
‘spoliation’ of evidence” by “failing] to order Weber County and Ogden [City
Defendants to preserve evidence.” Id. at 9. But Semper’s appeal only concerns the
Weber County and Ogden City Defendants’ motion to dismiss her complaint, and that
motion did not concern spoliation of evidence. This argument is irrelevant for
present purposes.
Semper’s claims against the Weber County and Ogden City Defendants were
properly dismissed.
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III. Conclusion
For the reasons stated above, we affirm.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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Date Filed: 08/25/2025
UNITED STATES COURT OF APPEALS
Page: 1
FILED
United States Court of Appeal:
Tenth Circuit
FOR THE TENTH CIRCUIT
August 25, 2025
Christopher M. Wolpert
Clerk of Court
JEHAN SEMPER,
Plaintiff - Appellant,
No. 25-4022
(D.C.No. L22-CV-00070-TS)
(D. Utah)
SCOTT BESSENT, Secretary of the
Treasury, et al.,
Defendants - Appellees.
ORDER
Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges.
Appellant's Moton for Reconsideration/Rehearing construed as a petition for
rehearing. As construed the petition for rehearing is denied.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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Appellate Case: 25-4022
Date Filed: 09/05/2025
Page: 1
United States Court of Appeals for the Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Clerk@calO.uscourts.gov
Jane K. Castro
Chief Deputy Clerk
Christopher M. Wolpert
Clerk of Court
September 05, 2025
Gary P. Serdar
United States District Court for the District of Utah
351 South West Temple
Salt Lake City, UT 84101
RE:
25-4022, Semper v. Bessent, et al
Dist/Ag docket: l:22-CV-00070-TS
Dear Clerk:
Pursuant to Federal Rule of Appellate Procedure 41, the Tenth Circuit's mandate in the
above-referenced appeal issued today. The court's July 22, 2025 judgment takes effect
this date. With the issuance of this letter, jurisdiction is transferred back to the lower
court/agency.
Please contact this office if you have questions.
Sincerely,
Christopher M. Wolpert
Clerk of Court
Kendra M. Brown
Matthew David Church
R. Blake Hamilton
Nathan Jack
Janise K. Macanas
Tiffany Romney
Jehan Semper
cc:
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IN THE
SUPREME COURT OF THE UNITED STATES
Jehan Semper, Pro Se
PETITIONER
vs
Yellen/Bessent, et al.
RESPONDENT(S)
PETITION FOR A WRIT OF CERTIORARI TO
United States Court of Appeals for the Tenth Circuit
APPENDIX B
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CLOSED, FILING-RESTRICTIONS,LIMITED_APPEARANCE,OBJMAG,PROSE
US District Court Electronic Case Filing System
District of Utah (Northern)
CIVIL DOCKET FOR CASE #: l:22-cv-00070-TS
Semper v. Yellen et al
Assigned to: Judge Ted Stewart
Demand: $23,000,000
Case in other court: Tenth Circuit, 25-04022
Cause: 42:2000 Job Discrimination (Employment)
Plaintiff
Jehan Semper
Date Filed: 05/23/2022
Date Terminated: 02/20/2025
Jury Demand: None
Nature of Suit: 442 Civil Rights: Jobs
Jurisdiction: U.S. Government
Defendant
represented by Jehan Semper
PO BOX 86514
LOS ANGELES, CA 90086
(929) 266-5764
Email: jehan.semper@gmail.com
PROSE
V.
Defendant
Janet L. Yellen
Secretary of the Treasury
Defendant
Office of Civil Rights and Diversity
TERMINATED: 08/29/2023
Defendant
Internal Revenue Service
TERMINATED: 08/29/2023
Defendant
Scott Wallace
Acting Field Director
TERMINATED: 08/29/2023
represented by Tiffany M. Romney
US ATTORNEY'S OFFICE
111 S MAIN ST STE 1800
SALT LAKE CITY, UT 84111-2176
(801)524-5682
Email: tiffany.romney@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
04/03/2023
102 Plaintiff's Reply to Weber County Defendants 100 Memorandum in
Opposition to Motion, filed by Jehan Semper, (mh) (Entered: 04/03/2023)
04/03/2023
103 Plaintiff's Opposition to Weber County Defendants 99 Request to Submit
for Decision, filed by Jehan Semper, (mh) (Entered: 04/03/2023)
04/03/2023
104 Plaintiff's RESPONSE to Weber County Defendants 101 MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support,
filed by Plaintiff Jehan Semper, (mh) (Entered: 04/03/2023)
04/07/2023
105 ANSWER to 13 Amended Complaint,, filed by Janet L. Yellen.(Romney,
Tiffany) (Entered: 04/07/2023)
04/10/2023
106 Plaintiff's REPLY to Yellen's 105 Answer to Amended Complaint, filed by
Jehan Semper. (Attachments: # 1 Exhibit 14N)(mh) (Entered: 04/10/2023)
04/10/2023
107 RESPONSE to Motion re 98 MOTION to Compel Ogden City Defendants Rule
34, Rule 33 Responses filed by Defendants FNU Burnem, FNU Bushell, FNU
Hill, Jordan Nielsen, Ogden City, Ogden Police, P. Thomas, Eric Young.
(Church, Matthew) (Entered: 04/10/2023)
04/11/2023
108 Plaintiff's Third Compensation AFFIDAVIT. (Attachments: # 1 Exhibit 23D)
(mh) (Entered: 04/11/2023)
04/11/2023
109 Plaintiff's REPLY to Ogden City Defendants 107 Response to Motion, filed by
Jehan Semper, (mh) (Entered: 04/11/2023)
04/17/2023
110 REPLY to Response to Motion re 101 MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM and Memorandum in Support filed by Defendants Ryan
Arbon, Weber County, Weber County Sheriff. (Hamilton, R.) (Entered:
04/17/2023)
05/01/2023
111 Plaintiff's MOTION to Expedite Decision on 70,28,62,82,88,90,91,96,
98, filed by Plaintiff Jehan Semper. Motions referred to Cecilia M. Romero,
(mh) (Entered: 05/01/2023)
05/03/2023
112 Plaintiff's MOTION to Compel Weber County Defendants Produce Video
and All Evidence Related to Plaintiff Arising from 5/27/2021 at Weber
County Facility Immediately, filed by Plaintiff Jehan Semper. Motions
referred to Cecilia M. Romero.(mh) (Entered: 05/03/2023)
05/03/2023
113 Defendant's RESPONSE to Motion re 111 MOTION to Expedite Decisions
filed by Defendant Janet L. Yellen. (Romney, Tiffany) (Entered: 05/03/2023)
05/04/2023
114 Plaintiff's REPLY to Yellen 113 Response to Motion, filed by Jehan Semper.
(Attachments: # 1 Exhibit 26)(mh) (Entered: 05/05/2023)
05/05/2023
115 Plaintiff's Amended REPLY to Yellen 113 Response to Motion, filed by Jehan
Semper. (Attachments: # 1 Exhibit 26)(mh) (Entered: 05/05/2023)
05/05/2023
116 ORDER RESTRICTING FILINGS- The court hereby notifies Plaintiff that the
court will not accept any new motions or filings as of the date of this
order. Any document that is filed will be lodged and will not be
considered. Once the existing motions have been decided, the court will, if
needed, lift the ban on filings. Signed by Magistrate Judge Cecilia M.
Romero on 5/5/2023. (mh) (Entered: 05/05/2023)
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197 ORDER granting 194 Motion for Extension of Time to File Response/Reply
194 MOTION for Extension of Time to File Response/Reply as to 191
MOTION for Judgment on the Pleadings and Memorandum in Support. See
Order for details. Signed by Magistrate Judge Cecilia M. Romero on 6/5/24.
(jrj) (Entered: 06/05/2024)
06/06/2024
198 OBJECTION TO MAGISTRATE JUDGE DECISION to District Court by Jehan
Semper re 196 Order on Motion for Extension of Time to File
Response/Reply. (Attachments: # 1 Text of Proposed Order)(jrj) (Entered:
06/06/2024)
06/06/2024
199 OBJECTION TO MAGISTRATE JUDGE DECISION to District Court by Jehan
Semper re 197 Order on Motion for Extension of Time to File
Response/Reply, (Attachments: # 1 Text of Proposed Order)(jrj) (Entered:
06/06/2024)
06/25/2024
200 Nineteenth AFFIDAVIT of Jehan Semper filed by Jehan Semper, (jrj)
(Entered: 06/25/2024)
09/12/2024
201 NOTICE of Change of Address by Jehan Semper (kpf) (Entered: 09/12/2024)
09/25/2024
202 AFFIDAVIT of Jehan Semper filed by Jehan Semper, (jrj) (Entered:
09/30/2024)
12/05/2024
203 ORDER REFERRING MOTION 176 MOTION for Partial Summary Judgment.
Motions referred to Cecilia M. Romero. Signed by Judge Ted Stewart on
12/5/2024. (eg) (Entered: 12/05/2024)
12/06/2024
204 REPORT AND RECOMMENDATIONS re 181 MOTION for Summary
Judgment and Memorandum in Support filed by Jehan Semper, 178
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Eric Young,
FNU Hill, Jordan Nielsen, Ogden City, FNU Burnem, Ogden Police, P.
Thomas, FNU Bushell, 191 MOTION for Judgment on the Pleadings and
Memorandum in Support filed by Jehan Semper, 176 MOTION for Partial
Summary Judgment, 177 MOTION to Dismiss filed by Janet L. Yellen. See R
& R for details. Signed by Magistrate Judge Cecilia M. Romero on 12/5/24.
(jrj) (Entered: 12/06/2024)
12/06/2024
205 OBJECTION to 204 Report and Recommendations filed by Jehan Semper.
(jrj) (Entered: 12/09/2024)
02/19/2025
206 MEMORANDUM DECISION AND ORDER ADOPTING REPORT AND
RECOMMENDATIONS - It is therefore ORDERED that the Magistrate Judge's
December 6, 2024, Report and Recommendation (Docket No. 204) is
ADOPTED IN FULL. See Order for details. Signed by Judge Ted Stewart on
2/19/25. (jrj) (Entered: 02/19/2025)
02/20/2025
207 JUDGMENT- IT IS ORDERED AND ADJUDGED that Defendants' Motions to
Dismiss are granted, and this action is dismissed. Case Closed. Magistrate
Judge Cecilia M. Romero no longer assigned to case. Signed by Judge Ted
Stewart on 2/20/25. (jrj) (Entered: 02/20/2025)
02/21/2025
208 NOTICE OF APPEAL as to 207 Judgment, 206 Memorandum Decision,,
Order Adopting Report and Recommendations, filed by Jehan Semper.
t
.1
Appeals to the USCA for the 10th Circuit. Fee Status: Not Paid. Filing fee $
605. (jrj) (Entered: 02/21/2025)
02/21/2025
209 Transmission of Preliminary Record to USCA re 208 Notice of Appeal.
(Attachments: # 1 Appendix)(jrj) (Entered: 02/21/2025)
02/21/2025
210 USCA Case Number Case Appealed to Tenth Circuit Case Number 25-4022
for 208 Notice of Appeal filed by Jehan Semper, (jrj) (Entered: 02/21/2025)
09/05/2025
211 MANDATE of USCA as to 208 Notice of Appeal filed by Jehan Semper.
According to the USCA the decision of the USDC for the Dist of UT is
Affirmed. Judgment included with mandate: Yes. (Attachments: # 1
Mandate letter)(jrj) (Entered: 09/05/2025)
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Case l:22-cv-00070-TS-CMR
Document 206
PagelD.6157
Filed 02/19/25
Pagel
of 3
‘
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JEHAN SEMPER,
MEMORANDUM DECISION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION
Plaintiff,
V.
JANET L. YELLEN, Secretary of the
United States Department of the Treasury,
et al.,
Defendants.
Case l:22-cv-70
District Judge Ted Stewart
Magistrate Judge Cecilia M. Romero
This matter is before the Court on the Magistrate Judge’s Report and Recommendation1
regarding motions to dismiss filed by Defendant Secretary Janet L. Yellen;2 and Ogden City,
Ogden Police, Chief Eric Young, Officer P. Thomas, Officer Jordan Nielsen, Officer Bushell,
Officer Hill, and Officer Bumem (“Ogden Defendants”).3 Three motions from Plaintiff Jehan
Semper also remain unresolved: a Motion for Partial Summary Judgment,4 a Motion for
Summary Judgment,5 and a Motion for Judgment on the Pleadings6 (“Plaintiff s Motions”). For
the reasons discussed below, the Court will adopt the Magistrate Judge’s Report and
Recommendation in full.
1 Docket No. 204.
2 Docket No. 177.
3 Docket No. 178.
4 Docket No. 176.
5 Docket No. 181.
6 Docket No. 191.
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Filed 02/19/25 . PagelD.6158
The Plaintiff filed her original Complaint on May 24, 2022.7 The case was subsequently
referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B).8 After filing multiple amended
complaints, Plaintiff filed the Operative Complaint on April 1, 2024.9 The Magistrate Judge
issued a Report and Recommendation on December 6, 2024.10 Plaintiff timely filed an objection
to the Report and Recommendation on December 6, 2024.11
The Magistrate Judge recommends granting Secretary Yellen’s Motion to Dismiss
because Plaintiff did not exhaust her administrative remedies , resulting in a failure to state a
claim. The Magistrate Judge also recommends granting the Ogden Defendants’ Motion to
Dismiss. Accordingly, she recommends that the Court deny Plaintiff’s motions as moot.
The Court reviews a Report and Recommendation de novo.12 “In order to conduct a de
novo review a court ‘should make an independent determination of the issues; it is not to give
any special weight to the prior determination’”13 “The district judge is free to follow a
magistrate’s recommendation or wholly to ignore it, or, if he is not satisfied, he may conduct the
review in whole or in part anew.”14
The Court has carefully reviewed and considered the record and pleadings in this case,
along with the Report and Recommendation. For the reasons explained by the Magistrate Judge,
7 Docket No. 4.
8 Docket No. 9.
9 Docket No. 174.
10 Docket No. 204
11 Docket No. 205; see 28 U.S.C. § 636(b)(1)(C) (stating that party has 14 days after
service to object to a Report and Recommendation).
12 Fed. R. Civ. P. 72(b)(3).
13 Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
United States v. First City Nat’l Bank, 386 U.S. 361, 368 (1967)).
14 Id. (quoting Mathews v. Weber, 423 U.S. 261, 271 (1976)).
2
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Case l:22-cv-00070-TS-CMR
Document 206
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Filed 02/19/25
PagelD.6159
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the Court agrees with the Magistrate Judge and will accordingly adopt the Report and
Recommendation in full.
It is therefore
ORDERED that the Magistrate Judge’s December 6, 2024, Report and Recommendation
(Docket No. 204) is ADOPTED IN FULL.
DATED this 19th day of February, 2025.
BY THE COURT:
Ted^SttJwart
United States District Judge
Case l:22-cv-00070-TS
Document 207
Filed 02/20/25
PagelD.6160
Page 1 of 1
AO 450 (Rev.5/85) Judgment in a Civil Case
United States District Court
District of Utah
JEHAN SEMPER,
JUDGMENT IN A CIVIL CASE
Plaintiff
JANET L. YELLEN, Secretary of the United
States Department of the Treasury, et al.,
Case # 1:22-cv-00070-TS-CMR
Defendants
IT IS ORDERED AND ADJUDGED
that Defendants’ Motions to Dismiss are granted, and this action is dismissed.
C
BY THE OQURT>
February 20, 2025
JMs
Date
Ted Stewart
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
JEHAN SEMPER,
ORDER RESTRICTING FILINGS
Plaintiff,
V.
Case No. l:22-cv-00070-TS-CMR
JANET L. YELLEN et al.,
Defendants.
Judge Ted Stewart
Magistrate Judge Cecilia M. Romero
Thirteen motions are currently pending in this case, ten of which were filed by Plaintiff.
In order to allow the court to resolve Plaintiffs multiple requests for relief, the court hereby
notifies Plaintiff that the court will not accept any new motions or filings as of the date of
this order. Any document that is filed will be lodged and will not be considered. Once the
existing motions have been decided, the court will, if needed, lift the ban on filings.
IT IS SO ORDERED.
DATED this 5 May 2023.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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Case l:22-cv-00070-TS-CMR Document 139 Filed 12/11/23 PagelD.4558 Page lot5
Jehan Semper
1916 Pike Pl Ste 12 #1372
Seattle, WA 98101
j ehan. semper@gmail. com
929.266.5764
LODGED
2023 DEC 11
CLERK
U.S. DISTRICT COURT
page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
| PLAINTIFF'S MOTION FOR SANCTIONS AGAINST
| VEXATIOUS RULE 34 RESPONSE FROM YELLEN
| FAILURE TO TRANSMIT PDF TEXT LAYER
Jehan Semper, Pro Se
Plaintiff
1 CASE 1:22-CV-00070-TS
1
V.
| JUDGE STEWART, T
Yellen, et al.
Defendant(s)
1
1.
SUMMARY
(a)
Yellen's Rule 34 Response consists of more
As
files.
catalog,
of
this
day,
it
in its entirety,
is
Plaintiff's
than 12,000 PDF
belief
that
Yellen's
is neither indexed nor text searchable
because the PDFs do not include a text layer. A PDF with no text
layer is an image. The only way to read an image is to actually read
the
image.
It
is
not
reasonable
to
believe
that
anyone
would
literally read 12,000 images, but that is the only method of reading
the
files
Yellen
produced
(Exh
41A,
USA-RS-00029140,
USA-RS-00029141).
(b)
IMPORTANT: On the basis of personal and professional experience,
Plaintiff tells the court,
it is possible that the court's document
processing could perform OCR Optical Character Recognition and add a
text layer to any PDF it uploads to ECF/PACER. With that being said,
Case l:22-cv-00070-TS-CMR Document 139 Filed 12/11/23 PagelD.4559 Page 2 of 5
understand that it is Plaintiff's belief that Yellen's "failure" was
directed at Plaintiff in a sinister way, because it is likely that
Yellen's treachery and "failure" would not be obvious to anyone once
Plaintiff completes a filing with the court. Do you see? If the court
would like to receive USA-RS-00029140,
USA-RS-00029141 by email to
confirm their condition, Plaintiff is willing to do that.
(c)
It is Plaintiff's belief that Yellen's failure to transmit the
text
layer
of
those
12,000+
PDFs
an
is
attempt
to
fatally
disadvantage Plaintiff in her effort to receive justice from the
court because the evidence of Yellen's wrongdoing is in the "images"
Yellen was loath to index and make searchable. See.
(d)
Plaintiff would like to make certain the court understands:
professional experience and
Plaintiff's
blessings
of
the God of
Israel are the reason she was able to neutralize Yellen's evil. See
(Exh
41A,
Plaintiff's
Eleventh
Affidavit)
filed
in
tandem
with
MOTION.
2.
DETAILS
(a)
Inexcusable. Yellen's failure is egregious, inexcusable and most
likely deliberate because it is common knowledge among those who work
with PDF files, such as Yellen's counsel, creating a searchable PDF
with a text layer is a standard option presented when creating PDF
files, especially when creating large catalogs such as Yellen's Rule
34 response. Yellen knew,
or should have known, that the PDF text
Semper v Yellen, et al. CASE 1:22-CV-00070-TS JUDGE STEWART, T
PLAINTIFF'S MOTION FOR SANCTIONS
VEXATIOUS RULE 34 RESPONSE FROM YELLEN
2 of 5
Gase l:22-cv-00070-TS-CMR Document 139 Filed 12/11/23 PagelD.4560 Page 3 of 5
layer is required when the PDFs are presented for matters such as
this
case.
The
text
is
layer
reasonably expected within
so
modern, mundane PDF transmission, the option to create a text layer
is usually toggled "on" as standard and can only be prevented by
deliberately choosing not to create the text layer.
Thinly Veiled Hatred. Within the more than 6 months Yellen has
(b)
squandered, there was more than adequate time to "correct" the text
but
layer matter,
not.
she did
It is more likely than not that
Yellen's failure to transmit the text layer is deliberate and thus
malicious and bad faith.
(c)
Nasty Tricks to Shield the Guilty. Yellen knew, or should have
known,
the
production
tools
such
of
to Yellen within
available
a catalog
are
more
large
company mass
sophisticated
than
those
available to Plaintiff as an individual and thus the PDF text layer
ought have been transmitted.
(d)
The cost of overcoming Yellen's evil is an unjust burden on
Plaintiff's
time
and
modest
transmit
a
text
layer
as
12,000+
files,
Plaintiff
resources.
reasonably
sought
Yellen
Because
expected
additional
when
tools
did
not
transmitting
and
software,
developed processes and implemented professional skills that would
not be available to the usual Plaintiff, Pro Se (Exh 41A).
(e)
Yellen knew,
or should have known,
the natural effect of her
failure to transmit the PDF text layer could result in denial of
Semper v Yellen, et al. CASE l:22-CV-00070-TS JUDGE STEWART, T
PLAINTIFF'S MOTION FOR SANCTIONS
VEXATIOUS RULE 34 RESPONSE FROM YELLEN
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justice
Plaintiff
to
purely
by
virtue
of
making
the
evidence
inaccessible within any reasonable amount of time invested. Yellen
must not be permitted to obstruct Plaintiff in her effort to receive
the justice she has diligently sought from the court.
(f)
Cost and Effort.
expected
text
Yellen's failure to transmit the reasonably
for
layer
12,000+
files
resulted
in
the
necessity that Plaintiff invest approximately 3 days of additional
work at 8 hours per day (Exh 41A, Figure 1).
(g)
Yellen's Rule 34 and its IRS 20 year email is the library of the
evidence
in
this
case.
Yellen's
only"
"image
library is
a
hardship that Plaintiff was unjustly required to mitigate and Yellen
deliberately caused that hardship (Exh 41A).
3.
FINAL THOUGHTS
4.
Yellen ought be disciplined for her failure to transmit the text
layer of the more than 12,000 PDF files. Yellen knows she and her
employees are guilty of Plaintiff's allegations. Yellen's failure to
COMPLY with
the
3/14/2022
FAD,
her
inexcusable delays
and
time
wasting in this case are disgusting examples of her fundamental lack
of
respect and
liberty,
recognition of me as a human deserving of life,
the pursuit of happiness and JUSTICE. Yellen's culture of
hate, antisemitism and utter disregard for my rights, which Plaintiff
experienced
with
such
intensity
at
IRS
Ogden
duty
station,
Semper v Yellen, et al. CASE l:22-CV-00070-TS JUDGE STEWART,
PLAINTIFF'S MOTION FOR SANCTIONS
VEXATIOUS RULE 34 RESPONSE FROM YELLEN
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Case l:22-cv-00070-TS-CMR Document 139 Filed 12/11/23 PagelD.4562 Page 5 of 5
obviously expressed by way of this "failure". Yellen said clearly,
"Yeah, we did it. So what? Go fish." See.
5.
PRAYER FOR RELIEF
Plaintiff prays the court sanction and chastise Yellen with:
ORDER Yellen to pay Plaintiff a punitive amount of $15,000 or an
(a)
amount
appropriate
for
the
vexatious
"failure"
by
the
court's
discretion, whichever is greater, the amounts to be paid by printed
check in the amount and quantity Plaintiff directs; and
ORDER Yellen to pay Plaintiff for the additional effort incurred
(b)
and described (Exh 41A, Figure 1) as a result of Yellen's "failure",
the amounts to be paid by printed check in the amount and quantity
Plaintiff directs; and
(c)
ORDER Yellen to CEASE her bad faith attempts to disadvantage
Plaintiff and deny her the justice she has sought from the court; and
ORDER additional and appropriate relief in Plaintiff's favor.
(d)
I affirm, under penalty of perjury, that I have uttered the truth.
777
/s/ Jehan Semper
Plaintiff, Pro Se
12/11/2023
Semper v Yellen, et al. CASE 1:22-CV-00070-TS JUDGE STEWART, T
PLAINTIFF'S MOTION FOR SANCTIONS
VEXATIOUS RULE 34 RESPONSE FROM YELLEN
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IN THE
SUPREME COURT OF THE UNITED STATES
Jehan Semper, Pro Se
PETITIONER
vs
Yellen/Bessent, et al.
RESPONDENT(S)
PETITION FOR A WRIT OF CERTIORARI TO
United States Court of Appeals for the Tenth Circuit
APPENDIX C
‘
Case l:22-cv-00070-TS-CMR Document 18-1 Filed 06/14/22 PagelD.2573 Page 2 of 67
DEPARTMENT OF THE TREASURY FINAL AGENCY DECISION
In the matter of
Jehan Semper v. Janet L. Yellen, Secretary of the Treasury
TD Case No. IRS-21-0461-F
This decision concerns the above referenced complaint of discrimination against the
Department of the Treasury. This complaint concerns alleged violations 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.
PROCEDURAL CHRONOLOGY
March 2021 - June 2021
June 1,2021
June 30, 2021
June 30, 2021
July 4, 20211
July 19, 2021
December 14, 2021
December 17, 2021
December 22, 2021
February 28, 2022
February 28, 2022
29 C.F.R. § 1614.110(b)
Alleged discriminatory actions:
Counselor contact:
Notice of Right to File issued:
Notice of Right to File received:
Formal complaint filed:
Acceptance letter issued:
Investigation completed:
Distribution of Investigative File (IF):
Request for a Final Agency Decision
Supplemental Affidavits Obtained:
Request for a Final Agency Decision:
Authority:
ISSUES
Whether Complainant was subjected to discrimination, including harassment,
based on age (over 40), religion (Jewish), and in retaliation for protected activity,2
when:
1 The record shows that on the same date, Complainant filed an appeal of her termination to the Merit
Systems Protection Board (MSPB), Denver Field Office, Appeal No. 202102837, Docket No. DE-315H21-0251-1-1, which was subsequently dismissed for lack of jurisdiction on July 28, 2021. The
Administrative Judge held that Complainant was terminated during her one-year probationary period and,
therefore, did not have regulatory MSPB appeal rights.
2 Although Complainant did not formally raise the basis of retaliation during Counseling or in her formal
complaint, Complainant clearly alleged in her testimony and evidence that she believes that retaliation for
protected EEC activity factored into her termination. Since a complainant is allowed to add bases of
alleged discrimination at any point prior to the completion of the Report of Investigation, and there is
sufficient evidence developed in the record, we will address this basis as well in the instant decision.
1
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1. Between March 29, 2021, through June 30, 2021, management refused to
accommodate her observance of the Sabbath and directed her to work an
unreasonable amount of overtime, which hindered her religious observance;
2. On May 17, 2021, she received a counseling memorandum regarding
excessive time allocation;
3. On June 30, 2021, she was terminated during her probationary period;
4. On several dates between March 29, 2021, through June 30, 2021, she was
subjected to various acts of harassment, including but not limited to:
A. Her manager described her religious practices as “ridiculous”;
B. Her manager deliberately provided her with inaccurate training and
instructions related to reporting time and attendance;
C. On May 24, and May 26, 2021, respectively, while walking home from
work, she was harassed by the Weber Sheriff’s Office and Ogden Police,
which she alleged was initiated by IRS employees;
D. She was disproportionately scrutinized regarding daily activities, time
reporting, and operator statistics; and
E. Her manager tried to coerce her into a schedule change rather than
accommodate her religious observances.
BACKGROUND
On March 29, 2021, Jehan Semper (Complainant) began her position as a Data Entry
Clerk (Transcriber), GS-0356-04, for Data Conversion, Internal Revenue Service (IRS
or the Agency) in Ogden, Utah. She named numerous Agency officials as responsible
for the alleged harassment and discrimination between her start date and her
termination on June 30, 2021. Her allegations primarily concern: first-level manager
(herein S1), second-level manager/Department Manager (herein S2), Training Manager
(herein TM), On-the-Job Instructor (herein OJI), third-level manager/Operations
Manager (herein S3), and fourth-level manager/Acting Field Director (herein S4).
Investigative File, Volume 1, pp. 270-75 (IF1,270-76).3
Complainant indicated she was age 47 at the time of the events. None of the
management officials indicated an awareness of Complainant’s age prior to her
termination. S1 guessed Complainant was around age 40. S2 guessed she was in her
30’s. TM guessed she was in her late 20’s/early 30’s. OJI guessed age 25 to 30.
Complainant stated that her age is published on the internet and that she had a
discussion with S2 on April 8th that indicated she was beyond a certain stage
associated with women over 40 years old.4 Complainant stated that from the start of
her employment, she clearly made known to her supervisors that she was of the Jewish
3 All citations are to the three-volume Investigatory File (IF), unless otherwise noted. Volumes 1, 2, and 3
are denoted by IF1, IF2, and IF3. Page citations refer to the Adobe PDF page numbers on the top of the
PDF files, not necessarily the Bates numbers on the bottom.
4 In a conversation with S2 on April 8, 2021, Complainant states she acknowledged being “beyond
menopause.” IF1, 277.
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faith and practiced Jewish observances, which her supervisors acknowledged. IF1,
281, 306; IF2, 176, 257, 286; IF3, 335.
S1 (age 57) stated she is an active member of the Church of Jesus Christ of Latter-Day
Saints (LDS). S2 (age 55) stated she also is a member of LDS. TM (age 39) stated
she is Baptist. OJI (age 34) stated he is atheist. IF2, 176, 257, 286; IF3, 335.
Claim 1: Between March 29, through June 30, 2021, management refused to
accommodate her observance of the Sabbath and directed her to work an
unreasonable amount of overtime, which hindered her religious observance.
Complainant began working for the Agency on March 29, 2021, with a 40-hour per week
tour of duty (TOD), eight hours per day, on the “swing shift” of 4:00 pm until 12:30 am.
As background, Complainant explained that Jewish Sabbath starts just before sunset on
Friday and continues until after sunset on Saturday. She stated that during these hours,
her religion instructs her to abstain from working (i.e., performing tasks with the goal of
earning wages) and traveling, and encourages her to observe Sabbath with other Jews,
which means traveling to Salt Lake City or beyond. This requires her to begin traveling
to Salt Lake City or beyond before the start of her 4:00 pm TOD to make sure she
arrives at the place where she will spend Sabbath before the sun sets on Friday. She
explained, “Thus, to perform complete Jewish Sabbath observance, in the company of
Jews appropriate for my level of Jewish practice, I am instructed to abstain from working
on Friday.” She explained that due to COVID, she has become accustomed to
observing Sabbath in solitude, which does not require her to travel to Salt Lake City or
beyond, and merely requires that she abstain from work and conduct all activities at
home or near to home during the Sabbath hours. IF1,287-88.
On April 1,2021, Complainant emailed TM and S1 a request to work Sunday through
Thursday, so that she can “properly observe Sabbath on Friday and Saturday.” She
also offered to consider scheduling work earlier on Friday to allow her to leave in
enough time to observe the Sabbath. She submitted an Alternative Work Schedule
(AWS) Request form with four TOD options to accommodate her religious observance:
1. Sunday - Thursday 4:00 pm to 12:30 am (40 hours per week);
2. Monday - Thursday 4:00 pm to 12:30 am (32 hours per week);
3. Monday - Thursday 4:00 pm to 12:30 am, Friday 4:00 pm to 8:00 pm (36 hours
per week, she noted this schedule “would work for summer”);
4. Monday - Thursday 4:00 pm to 12:30 am, Friday 11:00 am to 3:00 pm (36 hours
per week).
IF1,281-82; IF2, 213-14.
Complainant stated that despite meeting for an hour with S2 on April 8, 2021 and being
“interrogating” by S2 regarding her level of Jewish observance, S2 did not broach the
topic of the above April 1 Sabbath accommodation schedule that Complainant saw
sitting “unactioned” on S2’s desk. IF1, 283, 300-01, 306-08.
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On April 14, 2021, Complainant submitted a second AWS Request form to S1 with three
new possible schedule options:
1. Monday - Thursday 9:30 am to 8:00 pm (“4/10” schedule, 40 hours per week);
2. Monday - Thursday 11:30 am to 8:00 pm, Friday 4:00 pm to 8:00 pm (36 hours per
week);
3. Monday - Thursday 11:30 am to 8:00 pm, Friday 11:00 am to 3:00 pm (36 hours per
week).
IF1, 884; IF2, 215 (April 14 AWS form).
On April 14, 2021, S1 responded that she would submit the AWS Request to S2, who
would then elevate it to S3 for a response. Complainant stated that in the weeks after
submitting her AWS requests, she and S1 had multiple conversations about when
management would respond to her requests. She paraphrased STs Skype and email
communications during this timeframe as, “I don’t know what’s taking so long ....
sometimes things are slow around here .... Your request(s) require a PAR which can
take a while, there are a lot of things going on with internal processes that you don’t
understand, be patient. . . .” IF1, 313, 420, 884.
On April 26, 2021, while awaiting a response from management to her AWS requests,
Complainant emailed S1 that she would like to use 8 hours of earned compensatory
(comp) time to cover leave on Friday, April 30, to observe the Sabbath. S1 responded
that this should work, and Complainant can either end the day at 8:00 pm (and use four
hours) or take the whole day off. IF2, 246.
In an April 28, 2021, email to S1, Complainant communicated that her goals are to
ensure she can observe Sabbath properly and to make sure she can use public
transportation to and from work. She inquired whether there are other options that she
has not yet considered. IF1,457-58.
S1 responded to Complainant that switching to a “straight day shift,” i.e., a regular fiveday 8-hours per day schedule with a start time of 5:00, 6:00, or 7:00 am, would be
simpler and faster than getting an “unusual” AWS approved. She noted that if a day
shift is requested as “a religious preference, they would have to approve it.” IF1,457.
On April 29, 2021, Complainant emailed S1 (with a cc to S2) that she would like to
implement a daytime TOD, from 7:00 am to 3:30 pm. She wrote that, “this schedule
would naturally accommodate Jewish Sabbath observance and work all year[,] while
also providing the opportunity to utilize public transportation at start and complete time.
With that in mind, 7am to 3:30 pm would certainly be a religious preference.” IF1,456.
On April 29, 2021, S2 responded to Complainant’s request that Complainant should be
able to start a daytime schedule by the beginning of the next pay period. She noted that
part-time is a possibility as well that many people use, such as two to four days per
week on an 8-hour shift or a shortened shift. She wrote that Complainant would need to
fill out a “shift change form” (not an AWS form) to switch to day shift and/or to go parttime. IF1.451.
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On April 29, 2021, Complainant responded requesting the proper form and indicating
that “in the best scenario,” she would not have to work on Fridays at all, to ensure that
public transportation is always an option, and her Sabbath observance is not
compromised. IF1.450.
On April 29, 2021, S1 emailed Complainant a document titled, “Request for Shift
Reassignment” (herein Shift Reassignment form). Complainant responded with
uncertainty as to whether this was the appropriate form for her type of request (for a
change to alleviate undue hardship) and whether she would agree to sign it. She also
wrote that she would prefer to have a definitive response to one or both of her April 1
and April 14 AWS requests, before creating additional requests. She also requested an
interim accommodation - to “eliminate the undue hardship” - of informally being allowed
to start and end work earlier. IF1,459-60.
On or about April 30, 2021, S1 brought the April 14 AWS Request form back to
Complainant with the box marked for, “Disapproved,” and showing that “Approved” had
been initially marked and then crossed out. The “unactioned” April 14 request had
several sticky notes on it signed by S2 with a handwritten message indicating that the
organization is not currently approving 4/10 AWS, and that per the National Agreement
(collective bargaining agreement between the IRS and the National Treasury
Employees Union (NTEU)), Data Conversion only considers AWS requests in January
and July, and even then, it only approves a certain percentage of employees based on
Entry on Duty date order. If Complainant submits the Shift Reassignment form to switch
to a day (or part time) shift, it would be effective by May 23, 2021. IF1,420, 774 (copy
of sticky notes), 180 (Shift Reassignment form).
On April 30, 2021, S1 emailed Complainant to inform her that management does not
permit an AWS request per se until after the probationary year (including a 4/10 or 5/4/9
schedule). She then offered to bring Complainant a copy of the Shift Reassignment
form to switch to day shift. IF1,459.
Complainant averred that within days of receiving S1 and S2’s “encouragement” to
complete the Shift Reassignment form, S1 came to her desk with a printed copy of the
form, and she sat waiting for Complainant to fill it out. Complainant felt pressured and
would not agree to sign the form. She believes that the form was designed to
disadvantage her by falsely indicating that she was unavailable for her TOD (it has a
line for the “Manager Signature for Unavailable Employee”). IF1, 180, 420-21.
On May 7, 2021, Complainant emailed S1 to confirm instructions for using 4 hours of
comp time to leave four hours early on the following Fridays, May 14, and May 21,
2021. She wrote that, “it is likely that I will continue this methodology for the entire
season. IF1, 892-93.
On May 13, 2021, Complainant emailed S1 (cc to S2), to state that she has 4.25 hours
of annual leave, and 8 hours of comp time, which she would like to use for Friday, May
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14, 2021. She wrote that SETR is showing that she “can take just under 8 hours to
cover tomorrow with no need for approval.” She inquired, “what are the steps to
accomplishing this goal?” S1 responded that Complainant could use 8 hours of comp
time for Friday, May 14. S1 said that moving forward, Complainant should fill out a
leave request form with the Friday hours that she would like to take off for the following
quarter, to be submitted to S2 for approval. IF1, 543, 889.
On May 14, 2021, S2 emailed Complainant to respond to past emails concerning “time
off for religious observation.” She emphasized that although Complainant can use
comp time for religious observance, it still must be approved in advance by her
manager, the same as with any other type of leave Complainant wishes to use. Should
Complainant approve her own time off without the prior notification and approval of her
supervisor, she will be marked Absent Without Leave (AWOL), and it will be considered
falsification of her timecard that may result in written counseling to termination. She
noted that the current year has been extra busy, and as a result, the normal four-to-sixmonth season will likely be extended, in which case, Complainant may use her right to
voluntarily furlough if she wishes. IF1, 542-43.
Complainant asserted that S2 sent the above May 14 “hostile” email in response to her
receiving approval from S1 to use 8 hours of earned comp time to fully observe the
Sabbath on May 14, 2021. IF1, 313-14.
On June 23, 2021, Complainant emailed S1 to request a TOD of 20 hours per week,
with two 10-hour days, not to include Friday. She noted that because she wishes to
keep her 4:00 pm to 12:30 am schedule (albeit on a part-time basis), there is no need
for a Shift Reassignment form. S1 responded to Complainant the same day stating that
Complainant still needs to fill out the Shift Reassignment form. IF1, 36-37.
On June 23, 2021, Complainant emailed S3 and S4, with S1 copied, and wrote that the
Shift Reassignment form S1 presented is inapplicable, as she has clearly
communicated to S1 that she is not requesting a shift reassignment, she is merely
requesting to change to a 20-hour part-time schedule. IF1, 35-36.
On June 25, 2021, S4 responded to Complainant and wrote that he spoke with S2, and
she will be processing the part-time schedule request and it is not necessary to
complete another form. He requested that Complainant clarify her desired TOD to
complete the 20 hours since her requested schedule of working two days per week,
4:00 pm to 12:30 am, only adds up to 16 hours. Complainant responded the same day
that she wishes to work from 2:00 pm to 12:30 am, which is her usual practice. IF1,
802-03.
S2 responded to Complainant and the management chain that she will approve the
schedule of 4:00 pm to 12:30 am on Monday and Tuesday, and 4:00 pm to 8:00 pm on
Wednesday. She wrote that she will notify Complainant if 10-hour shifts become
available. She noted that the PAR will be inputted the same pay period, and
Complainant will begin the new schedule starting on July 18, 2021. IF1, 801.
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Overtime
On April 8, 2021, S2 and S3 issued a memorandum to Complainant indicating that due
to extremely high inventories in the SCRIPS (Service Center Recognition/lmage
Processing System) programs and insufficient volunteers working overtime, all SCRIPS
Data Entry Clerks (such as Complainant) will be directed to work 10 hours of overtime
per week, effective April 11,2021. On May 27, 2021, a subsequent memo changed the
number of directed overtime hours per week to five (5) hours, effective May 30, 2021.
Both memos indicated that if Complainant feels she cannot work the directed overtime,
she may provide a written explanation to her manager. IF1, 783-84.
On May 25, 2021, Complainant wrote to S1 that after six weeks of having performed the
10 hours of directed overtime each week, she would like to be excused from the
responsibility. She wrote that it is an undue hardship as it does not leave her with
enough time to sleep and prepare kosher food. On May 26, 2021, Complainant
reiterated her request to S1, writing that the combination of the directed overtime, the
two-hour walking commute from work to home (due to lack of public transportation at
12:30 am when her shift ends), and the lack of time to sleep and eat, is taking a toll on
her health, which manifested in multiple visits to the bathroom during her TOD. On
June 3, 2021, S1 informed Complainant that S2 approved an exemption for
Complainant from the directed overtime due to her health concerns. IF1, 894-96.
Management’s Response to the Allegations
S1 stated that Complainant’s original two accommodation requests were not granted
because (a) the schedules requested were “mid-shifts . . . and we do not do mid-shift
schedules”; (b) Complainant was a new employee in her probationary period, and
probationary employees “are not granted AWS . . . until they are out of their
probationary period, which lasts 1 year”; and (c) management only approves AWSs
twice a year, in January and July (so she would need to wait until July). S1 stated that
management offered Complainant the option of switching to the day shift, which would
have allowed her access to public transportation to and from work, and would have
allowed her to end work early enough on Fridays to have plenty of time for her Sabbath
observance. The other accommodation offered, which she accepted, was to use
earned comp time or accrued annual leave that would enable her to leave at 8:00 pm on
Fridays, which was early enough to travel home in time to observe Sabbath. S1 stated
that Complainant’s June 25, 2021, part-time schedule request was approved as well,
and would take effect on July 18, 2021. IF2, 177-79.
S1 testified that on May 26, 2021, she responded to Complainant’s request to be
absolved of overtime for health reasons, that she did not have to work the overtime for
the rest of that current week until an answer could be obtained from S2. S1 stated that
on June 3, 2021, S2 approved Complainant’s request to be absolved of the overtime
requirement. IF2, 180.
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S2 stated that in response to Complainant’s initial request for religious accommodation
to observe the Sabbath, she told Complainant that she could request an AWS, as well
as use comp time to cover her religious observance. She explained that she
disapproved of Complainant’s AWS request because one of the schedules requested
was part-time (32 hours), which was not within the definition of AWS per the National
Agreement Article 23, Section 6 and the other schedules were 10-hour shifts that were
not feasible options due to social distancing mandates and desk availability. She stated
that she provided Complainant with a formal response to her April 14 AWS Request on
April 30, 2021, which is within the two pay periods required by the National Agreement,
Article 23.6.A.2. S2 confirmed that in response to Complainant’s April 29 email
indicating she wished to start and complete her shift earlier, she offered Complainant a
day shift. She also offered Complainant the option of working part-time. Complainant
responded that she wished to go to the day shift, however, she never filled out the Shift
Reassignment form sent to her by S1 for implementation purposes. IF2, 287.
S4 testified that on June 25, 2021, Complainant’s request for a schedule change to two
10-hour days on Monday and Tuesday was approved, and a personnel action was
submitted by S2. IF3, 299.
Complainant’s Rebuttal
Complainant noted that S4 told S2 to approve Complainant’s 10-hour/day, two-day per
week schedule, but on June 25, 2021, S2 refused to approve and complete a PAR for
the 10-hour/day, two-day schedule, stating that 10-hour schedules were unavailable.
Complainant asserts that this is not true, as 10-hour schedules are always available for
religious and/or educational schedules, as described in the National Agreement, Articles
22.3.B.2(a) and (d) (recognizing that part-time employment are particularly appropriate
for older employees and students who must finance their own education and training);
23.8.D (AWS provided to employees as a reasonable accommodation for disability will
not be subtracted from the number of slots allocated for AWS) and 23.9 (employer is
able to establish a special tour of duty (e.g., split shifts) for educational purposes,
including courses approved under Tuition Assistance Program). S2 insisted that
Complainant accept a three-day per week schedule, two 8-hour days, and one 4-hour
day. Complainant also argued that S1 ’s assertion that she was not entitled to an AWS
because of not having worked there for a year is “preposterous,” as religious
accommodation is required regardless of how long the employee has worked and is not
subject to scheduling quotas. IF2, 2, 15.
Complainant stated that she decided the day shift was not right for her and she was
entitled to keep her 4:00 pm to 12:30 am shift and have her Jewish Sabbath as well.
She believes it was a violation for S1 and S2 to insist on changing shifts. She asserted
that S1 and S2’s insistence that she obtain permission every week to use comp time to
cover the bare minimum time needed to arrive home before sunset, with no guarantee
of approval, was unreasonable. IF2, 30, 56.
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Claim 2: On May 17, 2021, Complainant Received a Counseling Memorandum
Regarding Excessive Time Allocation.
On May 17, 2021, Complainant received an Employee Counseling Record (ECR) from
S1. The ECR indicates its purpose is to memorialize S1 and Complainant’s meeting
that day and “on more than on[e] occasion” in the past, when S1 communicated via
email and Skype with Complainant about her “excessive use of overhead/administrative
codes,” including 59300 (meeting time), and 59256 (IRM time). It states that S1 has
informed Complainant that she can take up to .5 under code 59300 for cleaning her
desk, washing her hands, and checking her email, and up to .3 under code 59256, while
she is still learning the job, for checking SERP/IRM (noting this is only when she is
“actively using” the IRM). More than this amount of time requires supervisory approval.
51 wrote that Complainant has also been spoken to about her production time on the
computer. When she is at work, especially on overtime hours, it is critical that she is on
the SCRIPS system and typing. S1 wrote that Complainant, “is a valuable employee
and we are honored that you would have a desire to work here in our department.” S1
closed by writing that as a probationary employee, Complainant has been given training
and on-the-job coaching to enable her to succeed. But, if Complainant is not performing
at the fully successful level in quality and efficiency or demonstrates unacceptable
conduct, she will recommend termination of Complainant’s employment before the end
of her probationary period. IF1, 776-77.
On May 18, 2021, Complainant emailed S1 to communicate her disagreement with the
May 17 ECR. She asserted that she was being subjected to “disproportionate scrutiny,
an eagerness to chastise, punish and otherwise discourage good faith
communications.” She asserted that her usage of codes 59256 and 59300 is the “direct
result of specific and persistent circumstances within the environment” that are not
within her control. IF1,441-42.
Complainant testified that the May 17 ECR is “nothing but lies.” Complainant believes
52 directed S1 to issue the ECR in response to Complainant having been approved by
S1 to use 8 hours of comp time to observe the Sabbath on Friday, May 14, 2021.
Complainant denies STs assertion that the ECR was written to memorialize S1 and
Complainant’s May 17 meeting and past discussions about Complainant’s “excessive
time allocations” and method of time reporting, for which she claims she was never
previously criticized. Complainant maintains that she initiated the May 17 meeting to
talk with S1 about her previous communications to S1 and S2 on May 3 and 4, 2021
(described below), concerning how “operator statistics” (herein “op stats”) was
consistently underreporting the time she spent on SCRIPS. Complainant explained that
op stats are metrics regarding the employee’s use of SCRIPS, such as time worked,
number of documents transcribed, and accuracy and speed of transcribing documents,
among other data. IF1,427, 441-42.
On May 3, 2021, Complainant emailed S1 to inform her that she had worked SCRIPS
that day from 2:12 pm until 4:53 pm, which is 161 minutes, but the op stats reported that
she worked only 136 minutes (approximately), resulting in a 25-minute discrepancy.
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She explained that this approximately 20 minutes difference could result in 80 minutes
of missing time from her op stats versus what she actually worked (20 minutes omitted
from every 2.5 hours, with a 10-hour workday, would mean 80 minutes missing). She
requested that management uncover the technical reason for this issue and that if no
technical resolution is implemented, to at least factor in this issue when viewing
Complainant’s time in SETR. IF1,498-99.
On May 4, 2021, Complainant emailed S1 a summary of the statements S1 made in
their discussion the previous night: S1 provided S2 with the data Complainant gathered
concerning an issue with the op stats underreporting her time; there may be a technical
solution, there have been similar circumstances with computing systems and programs
that were eventually resolved; and in the interim, each SCRIPS program code can be
time allocated within SETR to match what is actually invested rather than the verbatim
numbers printed within op stats. IF1,492.
On May 4, 2021, Complainant emailed S2 and S1, to state that she and S1 spoke about
her method of recording SCRIPS op stats within SETR. She wrote that from the start of
her job in Data Conversion (March 29, 2021), SCRIPS has consistently underreported
the time she invests working with SCRIPS. She cited her May 3 “test” as an example,
when she specifically made sure to work continuously on SCRIPS and timed her work
from 2:12 pm to 4:53 pm (161 minutes), yet op stats recorded 136 minutes.
Complainant noted it was her practice to report the op stats “verbatim,” and then
allocate the discrepant time to codes 59256 (IRM time) and 59300 (meeting time), to
make obvious the op stats’ underreporting of her time. (in the above example, based
on 161 minutes worked, Complainant would report 136 minutes to SCRIPS (in
accordance with the ops stats) and the 25 “discrepant” minutes to codes 59256 and/or
59300). She explained that SI advised her to record SCRIPS time within SETR
according to the time worked, even though this number might be significantly higher
than what the op stats report showed. Complainant wrote that this is the first time she
has heard of this practice, and she would like S2 to confirm that this is the appropriate
practice. IF1,496-97.
On May 5, 2021, Complainant emailed S2 and S1 to state she will complete SETR for
May 3 and 4 with “verbatim data until you confirm that you would like me to change this
practice.” IF1, 505-06.
On May 17, 2021, Complainant emailed S1 to summarize the content of their meeting
that day. Among other comments, Complainant wrote that S1 communicated that
“reducing the amount of time invested in 59256 and 59300 is a goal that we ought to
accomplish,” and that Complainant should “communicate necessity to utilize these
codes when necessary.” IF1, 544.
Complainant testified that she did not follow STs verbal instructions to report the time
she actually worked on SCRIPS (rather than the op stats reported time) for fear that
management would use this as a trap to claim that she was fraudulently overreporting
her SCRIPS time, by claiming her logged hours are more than the op stats reports
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support. Complainant believes S1 and S2’s bad faith was demonstrated by their
unwillingness to confirm their instructions in writing. Complainant wrote that this
discrepant time issue occurred throughout the time she worked at IRS Ogden, and
despite imploring S1 on multiple occasions to implement a technical solution, the issue
was never resolved. IF1, 314-18, 621.
Complainant stated that during her “bizarre” May 17 meeting with S1, they spoke for
approximately one (1) hour before S1 presented the ECR, at which time she indicated
that she was “encouraged” to issue it, and that she told Complainant that she “added
the words that say [that Complainant is] valuable and we are honored to have you.”
Complainant stated that when their May 17 meeting concluded, S1 knew and did not
object to the fact that Complainant would continue reporting the discrepant time to
59256 and 59300. Neither S1 nor S2 ever objected or commented on Complainant’s
SETR time reporting and their final SETR signature and approval was always provided.
Complainant testified that based on the above explanation that there was never any
“excessive” time allocated to time codes 59256 or 59300; “the additional time was
discrepant time from operator statistics’ incessant underreporting of [her] time invested.”
Id.
Management’s Response to the Allegations
S1 stated that she issued the May 17 ECR to Complainant at the instruction of S2, due
to Complainant’s excessive use of overhead time. She stated that she had previously
spoken with Complainant about the excessive use of overhead time, yet Complainant
did not improve in this area. She explained that every working day, their employees are
granted .5 (half an hour) of the “meeting” time codes (990 59300) to clean their desks,
view emails and prepare for their day, up to .3 of the Internal Revenue Manual (IRM)
time code (990 59256) for IRM review, and .5 of the break time code (990 59320), and
.1 for inputting time each day using SETR or time keeping reports (990 59330). S1
stated that Complainant often used over 1 to 1.5 hours of each of these time codes per
day. She stated that when she asked Complainant why she needed so much meeting
and IRM time, Complainant responded that she needed to write emails to her, which
took an hour at a time to compose, and that she was reading the National Agreement or
union handbook, writing letters to the Treasury Inspector General for Tax Administration
(TIGTA), and looking through the intranet. IF2, 182-85.
S1 stated that Complainant claimed the SCRIPS system was miscalculating her time by
indicating less time and volume than she actually worked, and that it needed to be fixed.
She testified that she looked into Complainant’s assertion by verifying with other
employees who started at the same time as Complainant and worked under the same
conditions (location, environment, computer types), and these employees’ time
reporting was more accurate. S1 stated that management began looking further into
Complainant’s time reporting because it noted that several times, she would arrive early
to work, and “leads” in the area witnessed she was not working on programs but instead
was on email, intranet, or other non-work-related sites. She also averred that
Complainant was earning overtime hours but was not doing the work, and she
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continued to earn overtime hours after asking to be excused from overtime. She further
claimed that Complainant would not ask for prior authorization to conduct the non-work
activities but would inform her after the fact, and then document them under the
“meeting” and “IRM” time codes. Id.
S2 stated that Complainant was issued the May 17 ECR because she had been warned
and yet persisted in allocating an above-average amount of time to the overhead time
codes 990-59300 and 990-59256. She stated that in an April 30, 2021, discussion with
S1, Complainant stated that she was using those codes to account for time she
invested in SCRIPS and that SCRIPS does not record. S1 also informed Complainant
that when working overtime, she needed to spend that time working and not on email or
intranet. She stated that the average time for the rest of Complainant’s team was 2.5
hours for under 59300, and 1 hour under 59256; whereas Complainant averaged 5
hours for 59300 and 3.5 hours for 59256. [Presumably S2 is comparing their average
per pay period, though she did not clarify.] Regarding the alleged underreporting of
Complainant’s time, S2 stated that she contacted the main manager responsible for the
incorporation of the SCRIPS system 15 years ago, who contacted the System Analyst.
She stated that management was informed that the SCRIPS system is accurate in its
recordation of op stats. IF2, 293-94; Supplemental Affidavit of S2, 4.
Complainant’s Rebuttal
Complainant explained how she had no good option for dealing with the circumstance of
“operator statistics inexplicably under reporting [her] time.” She chose to report
verbatim the op stats, and to report the discrepant time to variable time codes
59256/59300, communicate the issue to her manager, and ask her manager to provide
a solution. Complainant denies that she conducted unauthorized phone calls or
activities on her work computer. IF2, 8-10, 16-17, 29, 43.
Claim 3: On June 30, 2021, Complainant was terminated during her probationary
period.
The June 30, 2021, Termination Letter from S2 states that it is a notice of the decision
to terminate Complainant’s employment with the IRS effective that day. The reason
given for the termination: “You provided false statements when recording your hours
worked on the Single-Time Reporting System (SETR),” including the following.
• On May 24, 2021, you reported working 10 hours on the SETR. According to the
Workstation Operator Statistics log, you worked a total of 8 hours and 1 minute.
• On May 25, 2021, you reported working 10 hours on the SETR. According to the
Workstation Operator Statistics log, you worked a total of 7 hours and 13 minutes.
• On May 26, 2021, you reported working 10 hours on the SETR. According to the
Workstation Operator Statistics log, you worked a total of 6 hours and 51 minutes.
• On June 3, 2021, you reported working 10 hours on the SETR. According to the
Workstation Operator Statistics log, you worked a total of 8 hours and 17 minutes.
• On June 4, 2021, you reported working 9 hours on the SETR. According to the
Workstation Operator Statistics log, you worked a total of 3 hours and 54 minutes.
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The Termination Letter concludes that Complainant’s “actions have resulted in
management completely losing confidence in your integrity and ability to perform your
IRS duties in an ethical, honest, and trustworthy manner.” IF1, 879-80.
Complainant averred that the Termination Letter consists of “wholly false allegations,”
and insists that she has “always reported honest, correct, accurate time which is
approved and signed by management.” Complainant pointed out that the timing of the
Termination Letter came soon after management learned of her engaging in Equal
Employment Opportunity (EEO) Counseling, the same day she received a Notice of
Right to (formally) File a Discrimination Complaint. The Counseling Report indicates
that S1 and S2 were first notified of Complainant’s informal EEO complaint on June 15,
2021. The record indicates that management drafted Complainant’s termination letter
the following day on June 16, 2021. Complainant asserts that S2 knew that
Complainant received the Notice of Right to File a Discrimination Complaint letter on
June 30, 2021, and later that day, at approximately 8:00 pm, S2 presented to
Complainant the Termination Letter. The EEO Counseling Report confirms that on
June 30, 2021, the Counselor notified S1 and S2 of the issuance of the Notice of Right
to File to Complainant. IF1, 16, 20 (Counseling Report), 326, 375; IF2, 403 (draft
Termination Letter dated July 16, 2021).
Complainant expressed that the Termination Letter was issued within days of S4
instructing S2 on June 25, 2021, to grant Complainant a 20-hour/week schedule to
accommodate her Sabbath observance. She also averred it was a retaliatory response
to her June 29, 2021, email to S4, in which Complainant went into detail explaining how
“[S1] and her cohorts” provided her with “deleterious verbal instructions to improperly
inflate the hours attributed to SCRIPS within [her] time reporting,” so that they could
then use Complainant’s time reporting as a basis to terminate her (simply for following
the verbal directives S1 provided). Complainant complained about the “ill-intentioned
and unjust” May 17 ECR and requested S4’s help with making certain her employee file
remains unblemished by the effect of inaccurate and deceptive training and time
reporting instructions - instructions that S1 and S2 refused to confirm in writing, and
which Complainant believes “are an expression of religious hatred, [and are]
discriminatory and retaliatory.” IF1, 326, 375, 829-31 (June 29 email to S4).
Complainant asserts that the Agency is falsely claiming that the hours reported for each
TOD are comprised of op stats log hours alone (coded as 470 and 480) and that it
knows that the correct number of hours for each TOD also includes time allocated to
code 990 (non-ops stats time codes). “Thus, the operator statistics are always less than
the number of hours reported for the [TOD] and that is normal.” According to
Complainant, the correct number of hours for each TOD is the sum of time coded as
470, 480, and 990; but the Agency deceptively implied that the total hours must match
the op stats log hours. Complainant asserts that both S1 and S2 signed the SETR
transcript for pay period 11 (which includes the dates cited above May 24 - June 4,
2021) on June 5, 2021, and June 7, 2021, respectively. Before the final signature is
added, both S1 and S2 had ample time to object to or comment on the op stats and
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time reporting. Complainant states that the June 30, 2021, Termination Letter was the
first and only time she was ever made aware that there was a problem regarding her
time reporting for pay period 11. IF1, 329-30, 922.
The SETR Time and Attendance Record for pay period 11 (covering the dates of May
23, 2021, through June 5, 2021) shows that it was signed by S1 and S2 on June 5 and
June 7, 2021, respectively. IF1, 958.
Complainant asserted that her time on June 4, 2021, demonstrates the falsehood of the
Agency’s statement that she clocked 9 hours, but op stats showed less than 4 hours.
She explained that the Agency ignored the 3.7 hours of earned comp time (to leave
early on Friday for the Sabbath) that she used that day, which, when combined with the
3.54 hours of op stats, regularly approved overhead time, and considering the
underreporting of her time (allocated to overhead time), do not imply improper time
reporting. IF1, 927, 958 (SETR showing 3.7 attributed to comp time).
Management’s Response to the Allegations
51 testified that the reason for Complainant’s termination was excessive use of
overhead times and “not enough proper time on the system [(SCRIPS)] for what she
was getting paid for.” She was getting paid for hours that she was using for personal
unauthorized activities., e.g., she never asked if she could use extra time to write
emails, explore the intranet, or read through the National Agreement for one to two
hours per shift. S1 stated that on June 30, 2021, because Complainant declined the
meeting with S2 and S3B, they went to her work area with security officers and pulled
her aside to explain that she was being terminated. Complainant refused to sign the
papers and was escorted off the property by the security officers. IF2, 190-91.
52 stated she was responsible for the decision to terminate Complainant’s employment
during her probationary period on June 30, 2021. She quoted the Termination Letter to
explain her reasons for terminating Complainant. She stated that Complainant was
counseled for her time reporting on April 20, April 27, April 30, May 7, May 11, May 13,
May 17, May 21, and June 4, 2021, including verbally, in written form (May 17), and via
Skype (May 21). IF2, 297; Supplemental Affidavit of S2, 5.
Complainant’s Rebuttal
In her rebuttal, Complainant noted that the day before receiving the Termination Letter,
she received a ’’fully successful” performance rating, which made no mention of the
“false allegations” from the June 30, 2021, Termination Letter, nor did it contain any
negative comments. The performance rating “would have been the place to document
and communicate factual allegations and performance matters, but [it had] no such
allegations.” IF2, 2-5.
The record contains a performance appraisal dated June 29, 2021. Complainant was
rated “fully successful” on three out of the five Critical Job Elements, and apparently (it
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is blurry and difficult to read) an overall average score of 3.2. On Element V, Business
Results-Efficiency, Complainant received a 2 (apparently out of 5). Complainant
believes this element rated her speed of transcribing (but she is not sure because there
was no discussion of the rating). The performance evaluation is unsigned by
management, and there is no overall rating given. On June 29, 2021, S1 sent an email
to her employees (including Complainant) informing them of the Ad Hoc Reviews she
conducted, noting that it is “a short evaluation . . . based on [their] monthly IPRs,” and
asking them to sign the review in HR Connect. Complainant wrote a note to herself that
she refused to sign because of the 2 rating on Business Results-Efficiency, the average
3.20, and “scale and rating description required.” IF1,852-54; IF2, 24-25.
Complainant averred that despite being continuously subjected to false accusations,
there were no incidents of S1 or S2 objecting to her time reporting, nor any
communications regarding any alleged “false statements.” Complainant pointed out that
the Termination Letter accused Complainant of “false statements” while the ECR
accused her of “excessive time” allocated to overhead. Complainant’s Rebuttal to S2’s
Supplemental Affidavit, 7.
Claim 4A: Her manager described her religious practices as “ridiculous.”
Complainant testified that S1 described her religious practices as “ridiculous” when the
two were having a Skype conversation. [The alleged Skype conversation does not
appear in the record.] Complainant asserts that the referenced communication involved
her telling S1 that the IRS Ogden work environment “is saturated with conflicting
information, instructions and directives.” She stated that she, therefore, uses her
“religious education and its methods” to make decisions about what is true and correct,
and these methods include, “observation, analysis, direct communication with those
presented as ‘authority,’ ask questions . . . .” She stated that S1 responded plainly,
“Well, that’s just ridiculous,” arid then quickly said words to the effect of, “Oh, but that’s
just me. I usually just skate through life. I don’t think about things so much.”
Complainant avers that S1 told her on multiple occasions, including their first meeting
on April 9, 2021, that the transcriber job was “easy,” and she should not sweat it or take
it so seriously. IF1,337-38.
Complainant stated that during a meeting with S1 on May 17, 2021, at the time S1
presented the ECR to Complainant (claim 2), she asked S1 to confirm her previous
suggestion “that [she] just go with the flow.” S1 quickly confirmed that that is what she
would like Complainant to do. Complainant testified: “It was [at] that time that [S1] told
me plainly to stop performing my Jewish religious analysis and just do what she told me
to do ....” S1 then communicated to Complainant that the reason she and others have
successfully worked there for many years (15 years herself) is not because of
performance or “numbers,” (i.e., op stats) but because of “having friends.” Complainant
understood S1 as communicating: “Do you want to be Jewish, or do you want to work
here?” and Complainant understood that she was communicating that the effort
Complainant was investing to make sure her op stats are correct is a waste because all
that matters is if the managers like you. Complainant further understood that S1 was
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communicating that the ECR was a threat of further punishment if Complainant
continues to complain about instructions for tracking her work, time reporting,
unauthorized viewing of her personal information (described below) or the like.
Complainant stated the conversations like the one above occurred within Skype or in
private meetings in Si’s workspace, without any witnesses. IF1, 338-40.
Management’s Response to the Allegations
S1 denied having said that she thought Complainant’s religion was “ridiculous,” and
stated, “those words would have never been something that [she] would say.” She
contended that she once said that she, “thought it was interesting, that [Complainant]
being from New York, with what appeared to be a strong educational background, that
she would come to a state (Utah) which is predominantly LDS, and her being Jewish
must be a bit of a challenge.” IF2, 195.
Claim 4B: Her manager deliberately provided her with inaccurate training and
inaccurate instructions related to reporting time and attendance.
Complainant stated that S1 and S2 provided inaccurate training and instructions and/or
condoned malevolent practices such as deliberately providing inaccurate training
instructions by way of a colleague who trained new employees (herein the Trainer).
Complainant averred that S2 provided inaccurate time reporting instructions and/or
condoned malevolent practices such as deliberately providing inaccurate time reporting
instructions by way of S1. IF1, 340-48.
Complainant contends that the Trainer specifically gave her inaccurate training
instructions on name control, CCC (Computer Condition Codes) and receive dates.
She contends that on or about June 20, 2021, she implemented the Trainer’s
“inaccurate training instructions” and confirmed they created errors. Complainant adds
that on or about June 21, 2021, in response to STs message regarding Complainant’s
errors, Complainant communicated that they were “solely the result of inaccurate
training.” Complainant avers S1 responded she did not know the reason for such errant
instructions being given and confirmed that the instructions should not be followed.
Complainant further asserts that once she ceased following the inaccurate training
instructions, her accuracy returned to approximately 100%. Id.
Complainant testifies that on multiple occasions, S1 instructed her to report
manual time, instead of, and in contradiction to, op stats time (as explained above). Id.
Management’s Response to the Allegations
S1 testified that Complainant was taught in her primary training how to record her time
and attendance with a group of almost 20 new hires, and she was the only one who
seemed to struggle with the instructions. S1 stated that she was not involved in the
training, but the training information was the same information that has been taught to
many new hire classes and Complainant was the first one she is aware of who
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struggled with understanding the directives. She stated that she tried to show
Complainant the way she (S1) was taught to record her time and attendance, but
Complainant said that her way made things more confusing and time consuming for her.
IF2, 196.
S1 denies that Complainant received inaccurate training and asserted that Complainant
simply did not understand and made things far more complicated than was necessary.
S1 stated that TM reported to her that during the first night of formal training, the Trainer
was upset and crying because Complainant refused to listen and was argumentative.
She stated that none of the other 20 new employees in the same training as
Complainant had any problems with what was being taught, including three other
employees who worked under her. She recalled one time when Complainant received
several errors on documents that she felt had the incorrect information, but S1 believes
that Complainant “simply did not pick up the correct information in the correct way,”
despite having worked there for several months at that point. If the training was
inaccurate, then Complainant should have received “many more errors than one after
several weeks” on the job. IF2, 197-98.
S1 stated that when Complainant told her about the discrepancy between her “manual”
time spent with SCRIPS and the ops stats, S1 advised her to write down her time spent,
the batches of work and number of documents processed on a back-up sheet used in
their department, “and then at the end of the day, verify it with her computer generated
op stats, and if the op stats or the system were not accurate, then she could use her
manual counts instead of her computer op stats.” IF2, 196.
Claim 4C: On May 24, 2021, and May 26, 2021, respectively, while} walking home
from work, she was harassed by the Weber Sheriff’s Office and Ogden Police,
which she alleged was initiated by IRS employees.
Complainant explained that there were two possible incidents of inappropriate viewing
of her personally identifiable information (Pll) on April 6 and April 23, 2021, which she
reported to the OJI as a possible precursor to UNAX (unauthorized access, attempted
access, or inspection of taxpayer records). (The April 6 incident is described below,
infra p. 22.) On April 23, 2021, in a Skype conversation with the OJI in which
Complainant reported the Pll incidents and requested that the OJI take appropriate
steps to address the matter immediately, the OJI responded with anger and with what
Complainant understood as a threat to direct S2’s negative attention at her, so as to
escape discipline for not addressing her Pll report. Just after the OJI made the threat,
at approximately 1:00 am on April 24, 2021, as she began her two-hour walking
commute home from work, the Weber County Sheriff Deputy harassed her. IF1, 291,
301,625.
The April 23, 2021, Skype discussion between Complainant and the OJI indicates that
Complainant was very concerned about someone she saw (she did not provide the
name) carefully reading the printouts of her op stats at the printer. The OJI tried to
convince her that it was “benign,” and the person probably meant to see if it was theirs.
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Complainant wrote messages stating that this behavior must be addressed immediately
otherwise it “will grow to include other unacceptable behavior,” that “maybe we need a
refresher on the principles of UNAX,” and “I am messaging you to make sure you
know,” and she “will message [S1] and [S2]” about the matter as well. The OJI
responded, “I shall address this occurrence and your behavior to [S2].” IF1, 550-51.
Complainant testified that on May 25, 2021, she sent multiple emails to senior
management which consisted of a massive archive of communications related to her
experiences at IRS Ogden and formally reporting “incident(s) she believed to be
discriminatory and/or inspired by discrimination.” Complainant declares that a few
hours after communicating the May 25 message, while walking home at approximately
2:00 am on May 26, 2021, she was harassed by the Ogden Police. She stated that two
Ogden Police officers maliciously cited her for an infraction that is not usually enforced
(apparently for walking in the street rather than on the sidewalk), and minutes after, an
Ogden Police officer in a SUV blocked her path, with lights flashing, horns blaring, and
shouting at her in the loudspeaker. IF1, 349-63; IF2, 80, 96.
Complainant stated that on May 27, 2021, during her walk home from work in the early
hours, she was physically injured by an Ogden Police officer, who maliciously arrested
her for an infraction that is not usually enforced (again for walking in the road), and she
was unlawfully detained by multiple Ogden Police officers. She stated that when she
was taken to the Weber Country facility, she was placed face down in a room with a
swastika carved into the window; she was interrogated with personal questions and was
forced to shiver in the cold room for over six hours with no food, water, or bathroom,
and her religious head coverings were confiscated. She believes the three incidents
were related to her communications regarding inappropriate viewing of her PH on April
24, 2021, and reporting discrimination at IRS on May 24, May 25, and May 26, 2021.
She further stated she believes “IRS employees colluded and conspired with Weber
County Sheriff and Ogden Police to harass, injure and maliciously arrest me because
they wanted to intimidate me and deter me from pursuing my complaints regarding the
inappropriate viewing of my personally identifiable information and religious
discrimination at IRS Ogden . . ..” Id.
Management’s Response to the Allegations
The OJI (he was the SCRIPS trainer for new hires) testified that he received
Complainant’s email regarding inappropriate viewing of her PI I. He assured her that it
was likely benign, as having a shared printer would inevitably result in someone
accidentally picking up someone else’s op stats sheet. He told Complainant that no one
would know what to do with the information if it did not pertain to them anyway, so it is
not a “big deal.” He asserted that they work in a “cohesive work-environment where
very seldom is anyone out to get anyone else. The document was picked up by
accident, and no malicious intent was present.” He denies any knowledge of
involvement by any IRS employees in the incident with the Weber Sheriffs Deputy on
April 24, 2021, or the Ogden Police on May 24, 2021. IF3, 336-37.
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S1 maintains that she was not involved with the Weber Country Sheriff’s Office
concerning Complainant and she has never contacted the police for the purpose of
harassing Complainant. She also testified: “I do not know of anyone who had any
reason to contact the police for any reason especially not for the purpose of harassing
this Complainant, unless they saw that she was doing something that was questionable
and called after they left work that night.” IF2, 198-99.
51 stated that on April 23, 2021, Complainant reported inappropriate viewing of her PH.
When she asked Complainant what team the other person was on so it could be
addressed with that person’s manager, Complainant would not be specific, but she
wanted management to speak to everyone about it. She stated that she informed the
other area managers and asked each of them to speak to their employees and remind
them that UNAX violations are not tolerated. Id.
52 maintains she was not involved with the Weber Country Sheriff’s Office incident, nor
has she had any contact with their Office. She also testified she is not aware of any
other IRS employee(s) who communicated with the Weber Sheriff’s Office or Ogden
police concerning Complainant. S2 stated she received Complainant’s April 23, 2021,
email in which she reported inappropriate viewing of her PI I. She acted in response to
Complainant’s email by reiterating to her managers that employees should set up a pin
number to use to print and that no one else should be looking at anyone else’s papers
or printouts. S2 also noted that Complainant’s op stats are listed under her SEID
(Standard Employee Identifier), so unless someone knows her SEID, they would not
know to whom the papers belonged. IF2, 302-03.
Complainant’s Rebuttal
Complainant noted that she is 47 years old; she has lived in many cities and states and
the only negative incidents she has had with the law occurred while working at IRS
Ogden; and each incident occurred within hours after her communications reporting
events at IRS Ogden that could be considered “wrongdoing.” IF2, 28.
Claim 4D: She was disproportionately scrutinized regarding daily activities, time
reporting, and operator statistics.
Complainant testified that S1 disproportionately scrutinized her regarding daily activities
which started on or about April 1,2021, when she communicated that she is Jewish to
TM, S1, and S2. She perceived disproportionate scrutiny through employees
persistently looking at her work desk monitor or manufacturing excuses to walk behind
her and linger. She also experienced the disproportionate scrutiny when S1 and
additional IRS employees, e.g., E1, repeatedly chastised her in response to multiple
false allegations, such as that Complainant was conducting personal phone calls at her
desk and that she activated a personal payment instrument at her desk. Complainant
told S1 to cease acting on the false allegations and that she would swear the allegations
were false. She stated that on one occasion, S1 stood at her desk and said, “You don’t
get computer time. Someone told me you were activating a credit card at your work
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desk.” She responded that the allegation was false and the “payment instrument” was
the Transerv commuter transit card she received from IRS, which she believes can only
be activated from her work desk because it required access to IRS email and intranet.
Complainant also stated that S2 and the TM disproportionately scrutinized her SETR
time reporting and op stats, which she learned of with S2’s May 14 hostile email and the
May 17 ECR. Complainant also asserted that the “fine tooth review of [her] SETR is the
manifestation of the OJI’s threat after. .. reporting the inappropriate viewing of my
personally identifiable information on April 23, 2021.” IF1, 367-71.
The record contains an April 27, 2021, Skype conversation between Complainant and
S1. Complainant was concerned that her SCRIPS op stats may have been affected
when her computer restarted. S1 stated that “unfortunately anything is possible,”
“sometimes weird things happen. . . it’s like having a gremlin around or something.”
Complainant then wrote that her belief that she was being “snooped” on while activating
her Transerv card was proven correct, is concerning, and asked if that happens often
and how to avoid such circumstances. S1 responded that since they are in such close
quarters, people seem to be a bit nosy and advised that Complainant to let her know
when she is doing something outside of SCRIPS. S1 also wrote:
I apologize for everyone because this is not mature behavior at all. And
honestly not everyone is as accepting of people who are ‘different’ from the
norm that they are used to. You have a much different presence about you
and perhaps it is intimidating but that’s just my own opinion. As I stated, we
need to educate a little better.
IF1, 508-09.
Management’s Response to the Allegations
S1 testified she was contacted by another employee, she does not recall who, about
Complainant being on the internet and the phone while sitting at her desk and
apparently doing something with a credit card. She stated she reached out to
Complainant via Skype and told her in a non-harsh manner, if she needed to
make personal calls or take care of personal business she should do so in the hallway
or a break room. Complainant explained she was activating her bus pass she had
gotten from IRS and S1 told her, “Okay, but next time ... be more aware of [your]
surroundings and how things appear to others because everyone is told to keep phone
conversations to a minimum and to take them out of the area if they will be longer than
a few seconds.” IF2, 199-200.
TM testified that she was the manager in charge of everyone’s SETR during training
and she “went through [(everyone’s SETR entries)] with a fine-tooth comb.” She avers
the reason for the added scrutiny of Complainant was that she was inaccurately putting
too much time under meeting and IRM time and was also putting all her volume under
one program instead of splitting them evenly. TM stated she advised Complainant of
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the inaccuracy of her SETR, showed her how it was supposed to be done, and how
much time is allotted for IRM time and meeting/administrative time. IF2, 266.
S2 testified that she had Complainant’s op stats reports pulled so she could verify her
time, as S1 brought to her attention that Complainant’s SETR showed larger than
normal amounts of overhead time. She maintains that it was also brought to her
attention by several managers and a team lead (probably TM) that Complainant was
observed leaving early but her timecard showed her having worked her full TOD. She
stated that the days they reported her leaving early varied - a Monday, a couple
Tuesdays, several Thursdays - all of which Complainant reported full time and overtime
worked. IF2, 304-05; IF Supplemental Affidavit of S2.
S2 asserts Complainant was inputting into her SETR an average of five hours of
unapproved administrative time to read and compose emails (some of them personal),
balance out her SCRIPS statistics, search the intranet, and read the National
Agreement. She also avers that the time Complainant recorded in SETR for her
SCRIPS programs (codes 470 and 480) did not coincide with the numbers on the
Workstation Statistics (/.e., op stats) report. S2 inquired about the possible discrepancy
but was informed that “the system reports accurately the time and keystrokes when an
operator is on the system.” S2 stated that she advised Complainant of the inaccuracy
of her SETR on multiple occasions and her response was that she was inputting time
under codes 59256 and 59300 to account for time that is not accounted for within the
SCRIPS system. She maintains that this is not something Complainant was instructed
to do, and “in fact, what it does do is up her production efficiency numbers.” IF2, 30405.
Rebuttal
Complainant averred that S2’s accusations of her leaving early without approval are
vague due to their falseness. Rebuttal to S2’s Supplemental Affidavit, 10.
Claim 4E: Her manager tried to coerce her into a schedule change rather than
accommodate her religious observances.
Complainant testified that after a month of being falsely led to believe that her Sabbath
observance schedule would be approved, on or about April 30, 2021, she received the
“un-actioned” April 14, 2021, AWS Request form, with notes from S2 insisting that she
complete and sign a Shift Reassignment form, while also being told verbally that she
would not receive a shift reassignment until after one year. She maintains that after S1
told her that her Sabbath observance schedule was not approved, she also insisted that
Complainant complete the Shift Reassignment form, while she “sat near [her] work
area.” Complainant asserted that she informed S1 she would “not make such an
important decision spontaneously, at her coercive behest.” Complainant further asserts
both S1 and S2 sent multiple emails suggesting she complete and sign the Shift
Reassignment form to switch to day shift. She noted that the Shift Reassignment form
21
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did not have a document control number and does not appear within the NTEU National
Agreement. IF1, 382-88.
Management’s Response to the Allegations
S1 testified she requested Complainant to fill out paperwork for a shift-change, as
Complainant was requesting to move to a part-time schedule, which required a shift
change, and they “needed paperwork to make anything official and to
keep documentation for all changes being made to employees’ schedules etc.”
51 contends the communications to Complainant were not to coerce her, but were
suggestions to help her, to address her transportation and Sabbath-observance issues.
IF2, 202.
52 testified that on April 29, 2021, to accommodate Complainant’s religious
observance, she provided Complainant with the options of switching to day shift or to a
part-time schedule and told her she would need to fill out a shift change form to request
a new daytime or part-time schedule. This new schedule would preclude the hardship
of having to work extra hours to earn comp time for her Sabbath observance. S2
emphasized, “the choice was ALWAYS up to her.” IF2, 306.
Other Harassment Allegations
Safe Transport
Complainant testified that she told S2 she would like to have access to safe transport
for her 12:30 a.m. work-to-home commute, which would have provided her relief from
her two-hour walking commute and provided her more time for religious observances
such as preparing kosher food. Complainant averred that S1 insisted “van pool” and
related safe transport options were not available. Complainant believes, however, that
there are safe transport options available, but she was not assisted with those options
because S1 and S2 “preferred to create an environment designed to constructively
terminate me by refusing to do anything that would make it comfortable for me to
continue working at IRS Ogden as an observant Jewish person.” IF1,292.
S1 testified that on April 1, 2021, Complainant met with her and TM and inquired about
the area’s public transportation. She stated that TM informed Complainant how to apply
for an Agency subsidized bus pass. S1 is aware that Complainant applied for the
program and successfully activated a bus card. S1 explained that it’s not necessarily
the Agency’s responsibility nor would it be feasible to provide transportation, safe or
otherwise, to its employees; all the Agency can do is to assist with applying for benefits.
S1 added that Complainant’s transportation concern was one of the main reasons that
she recommended Complainant switch to a day shift. IF2, 207.
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Inappropriate Viewing of her PH
Complainant testified that TM unnecessarily and inappropriately unencrypted and
viewed a secured confidential file consisting of her W4 and payroll direct deposit
information, including her full name, address, social security number, and banking
information. She explained that on or about April 5, 2021, she received a secured
message from an IRS HR payroll employee with her W4 and payroll direct deposit
information. As the Training Manager, Complainant asked TM to help her with reading
the message. Instead of telling Complainant she could configure secure certificates for
her IRS email or telling her the steps to unencrypt and read the email, TM told
Complainant to forward the secured message to her and then she unencrypted the
secured message with Complainant’s PH and sent the unencrypted file back to
Complainant, and then she told Complainant that she can configure the certificates to
read secured messages. IF1,278-80, 321-22.
On April 7, 2021, Complainant reported to TM, S1, and OJI, that the print-out of her
SETR on April 6, 2021, was not at the printer. This document had her complete name
and last four social security number digits. IF2, 243-44.
Complainant averred that on or around April 23, 2021, when she reported to TM the
possible incidents of inappropriate viewing of her Pll, TM emphatically insisted that no
such thing occurred, and it was Complainant’s confusion or mistake. Complainant
stated that she described the April 23 event in detail, including having witnessed the
unnamed employee voraciously reading her documents with her Pll, which he must
have known did not belong to him. Complainant also reported the April 23, 2021,
incident of an employee reading her op stats and SETR to S1 and S2 on April 24, 2021.
S1 responded by asking if Complainant knows the identity or team of the person who
did this. She stated that this issue “will be addressed and dealt with,” and she plans to
discuss this issue with other department managers in their staff meeting. Complainant
responded that she did not identify (nor did she want to identify) the employee who was
reading her printouts. IF1, 278-80, 321-22; IF2, 243-45.
TM testified that she received an email from Complainant stating she thought
someone had looked at her Pll and she then spoke with Complainant about sending
things securely to the printers. She also testifies she did not unencrypt Complainant’s
email; however, she told her she would have to go through the steps of unencrypting
her emails to read them and sent her step-by-step instructions on how to do secure
messaging. IF2, 265, 275.
Security Guard Harassment after Termination
Complainant stated that after presenting her with the Termination Letter on the night of
June 30, 2021, S2 asked two security guards, G1 and G2, to escort Complainant to the
IRS Ogden 12th St. exit. She avers that while quietly walking through the parking lot
toward the exit, G1 suggested that he would use his service weapon to lethally harm
Complainant because she chose to walk within a particular parking space. Complainant
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said she had gotten distracted and then pointed to the way she normally walks. Without
Complainant mentioning anything about her religion, G1 then said, “If there’s a religious
reason for that, I can accommodate that.” Complainant testified that she normally walks
within certain numbered parking spaces due to the significance of their numbers in
“gematria,” i.e., Jewish numerology. Complainant stated the fact that G1 brought up
accommodating her religion shows that there was inappropriate information sharing
between IRS employees and G1 and that he knew the termination was related to her
being Jewish. Complainant believes there was significant inappropriate sharing of
Complainant’s personal information among IRS Ogden employees, along with collusion
and conspiracy to harass her. IF1, 324, 364-65.
APPLICABLE LAW
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case
by demonstrating that he or 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). Proof of a prima facie case will vary depending on
the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To
ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctrv. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the Agency acted based on
a prohibited reason. See Hicks, 509 U.S. at 519.
The Age Discrimination in Employment Act (ADEA) applies to individuals age, 40 and
older. The Commission has held that the rules laid down by the U.S. Supreme Court in
McDonnell Douglas Corp. v. Green in proving a Title VII claim are also applicable in
proving an age discrimination claim. Alotta v. Department of Transportation, EEOC
Appeal No. 0120093865 (June 17, 2011). An inference of age discrimination can arise
when a comparator is substantially younger than the complainant, even though they are
in the same protected category. O’Connor v. Coin Consolidated Caterers Corp., 517
U.S. 308, 312-13 (1996). While there is no bright-line test for what constitutes
"substantially younger,” the term generally has been applied to age differences in
excess of five years. See Blinick v. Department of Housing and Urban Development,
EEOC Appeal No. 07A20079 (February 3, 2004), request for reconsideration denied,
EEOC Request No. 05A40497 (July 29, 2004).
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Retaliation
The statutory anti-retaliation provisions prohibit any materially adverse action that is
reasonably likely to deter a reasonable employee from engaging in protected activity.
Burlington N. and Santa Fe. Ry. Co. v. White, 548 U.S. 53, 67-69 (2006); Lindsey v.
U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Typically, the prima
facie case of retaliation requires evidence that: (1) the complainant engaged in
protected activity; (2) the employer was aware of the protected activity; (3) the
complainant was subsequently subjected to adverse treatment; and (4) a nexus exists
between the protected activity and the adverse treatment. Psak v. Dep’t of the Interior,
EEOC Appeal No. 0120110118 (April 18, 2013). A nexus may be shown by evidence
that the adverse treatment followed the protected activity within such a period of time
and in such manner that a reprisal motive is inferred. See Clay v. Dep’t of the Treasury,
EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their
employees unless a requested accommodation is shown to impose an undue
hardship. 42 U.S.C. § 2000e(j); 29 C?F.R. § 1605.2(b)(1). An employer is not obligated
to accommodate practices that are not compelled by a person’s beliefs in the tenets of a
religion but that reflect a mere preference or voluntary activity. See Jacques v. Dep’t of
the Interior, EEOC Appeal No. 0120083263 (July 17, 2012) (agency not required to
accommodate complainant's request to rest on Mondays, the day after her religious
obligations); Cole v. U.S. Postal Sen/., EEOC Appeal No. 0120064379 (Feb. 4,
2008) (driving the church bus and parking cars are optional, voluntary activities not
compelled by a person's belief in the tenets of a religion).
The traditional framework for establishing a prima facie case of discrimination based on
religious accommodation requires Complainant to demonstrate that: (1) she has a bona
fide religious belief, the practice of which conflicted with their employment, (2) she
informed the Agency of this belief and conflict, and (3) the Agency nevertheless
enforced its requirement against Complainant. Heller v. EBB Auto Co., 8 F.3d 1433,
1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026
(5th Cir. 1984).
Once a complainant establishes a prima facie case, the agency must show that it made
a good faith effort to reasonably accommodate complainant's religious beliefs and, if
such proof fails, the agency must show that the alternative means of accommodation
proffered by complainant could not be granted without imposing an undue hardship on
the agency's operations. Woodrow v. Soc. Sec. Admin., EEOC Request No.
0120141211 (Sep. 8, 2016) (citing Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681
(9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir.
1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989));
White v. Dep’t of Defense, EEOC Appeal No. 0120080191 (May 7, 2010) (granting
employee flexible scheduling did not demonstrate a good effort to reasonably
accommodate complainant where these schedules would not allow her to attend
Sunday school in the morning and afternoon church meetings as requested).
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The Supreme Court ruled that any reasonable accommodation proffered by the
employer is sufficient to meet its accommodation obligation. The employer is not
required to accept any alternative reasonable accommodation favored by the employee
short of undue hardship. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68
(1986). EEOC Regulation 29 C.F.R. § 1605.2(c)(2) provides that when there is more
than one accommodation available which would not cause an undue hardship on the
employer, the Commission will determine whether the accommodation offered is
reasonable by examining the alternative which least disadvantages the individual with
respect to his employment opportunities, such as compensation, terms, conditions or
privileges of employment. See 29 C.F.R. § 1605.2(c)(2) (ii). An employer is not
obligated to provide the most beneficial accommodation to an employee's religious
practices if it has offered some other reasonable option. Ansonia, 479 U.S. at 69
(1986); Johnson v. Dep’t of Justice, EEOC Appeal No. 0120100741 (Oct. 26, 2010)
(holding the agency attempted to reasonably accommodate the manager’s request for a
schedule change to observe holy days of worship by offering two possibilities of
overcoming the conflict, which the manager rejected); Levin v. Dep’t of Homeland
Security, EEOC Appeal No. 0120103001 (Oct. 15, 2010) (holding the agency not liable
for religious discrimination when it denied complainant’s request for Sundays off to
attend church, because it offered her two different schedule options, which she rejected
without showing that the offered options would have been ineffective).
Harassment/Hostile Work Environment
To establish a claim of harassment, a complainant must show, by a preponderance of
the evidence, that: (1) she belongs to a statutorily protected class; (2) she was
subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the 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. Rachel F. v. USPS, EEOC Appeal No. 0120150802 (Aug. 24, 2016)
(citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)).
Harassment is actionable only if the incidents complained of were sufficiently severe or
pervasive to alter the conditions of the complainant’s employment and create an
abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)). Simple teasing,
offhand comments, and isolated instances, unless extremely serious, do not amount to
discriminatory changes in the conditions of employment. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6, 9 (March 8, 1994).
Therefore, 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
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abusive. Complainant must also prove that the conduct was taken because of a
protected basis, in this case, Complainant’s age, religion, or prior protected activity.
Only if Complainant establishes both of those elements: hostility and motive, does the
question of Agency liability present itself. See EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 6, 9 (March 8, 1994).
ANALYSIS
Disparate Treatment
As a preliminary matter, Complainant demonstrated she is a member of the protected
categories of religion (Jewish), over age 40 (age 47), and one who engaged in
protected EEO activity (current case).
Claim 1 - Religious Accommodation and Overtime
Prima Facie Case
We find that Complainant established a prima facie case of discrimination based on
religious accommodation. She presented evidence that (1) she has a bona fide
religious belief that requires her to observe the Jewish Sabbath, which conflicted with
her work requirement to work late on Fridays, (2) she informed the Agency of this belief
and conflict with her work schedule, and (3) the Agency failed to provide a reasonable
accommodation for her religious observance when management failed to approve her
requested schedules with Friday off.
Management Articulation
The Agency managers explained that Complainant was provided several options to
accommodate her Sabbath observance. S1 and S2 explained that Complainant was
provided with the option, which she often used, of requesting and being approved to
earn and use religious comp time, as well as earned annual leave, to leave early or to
miss work on Fridays. S1 and S2 explained that Complainant was also given the option
of switching to a straight day shift, which would have allowed her to end work in plenty
of time to be home long before sunset on Fridays. They also offered her a part-time
work schedule that would not have required working on Fridays at all. These
accommodation options were first offered to Complainant on April 28 and 29, 2021. To
enact such a schedule, management required that Complainant complete a Shift
Reassignment form with her preferred schedule, but Complainant did not wish to fill out
the form, therefore no Sabbath observance schedule was granted. On June 23, 2021,
Complainant contacted her fourth-level supervisor, S4, to request a part-time 20-hour
per week schedule, with two 10-hour days, and no need to fill out a Shift Reassignment
form. On June 25, 2021, S4 instructed S2 to approve the request. On June 25, 2021,
S1 told Complainant that because 10-hour shifts were not currently available, she would
grant Complainant a 20-hour per week schedule with two 8-hour days and one 4-hour
27
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.