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

Equal Employment Opportunity Commission

Jul 13, 2017

0120171204 (E.E.O.C. Jul. 13, 2017)

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

Arnold T,1
Complainant,

v.

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

Appeal No. 0120171204

Hearing No. 560-2016-00295X

Agency No. IRS-16-0112-F

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January
12, 2017, final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s facility in Kansas City, Missouri. On January 14, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of his race (African-American), sex (male), and in reprisal for prior protected EEO activity
when he was not selected for the position of Contact Representative, advertised under vacancy
announcement number 15CS3-W IX0102-0962-05-GF.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. By
Order dated November 29, 2016, the AJ granted the Agency’s motion for sanctions and
dismissed Complainant’s hearing request. Specifically, the AJ found that Complainant’s actions
in refusing to allow the Agency representative to participate in telephonic depositions by stating
that “it is your prerogative for not being here” and terminating the phone call were “clearly
deliberate and intentional, and contrary to [the AJ’s] Order.” As such, the AJ remanded the
complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. On appeal, Complainant argues that the AJ erred in
dismissing his request for a hearing, and that the dismissal order was “manifestly unjust.”
Complainant also reiterates his contention that the Agency did not select him for the position at
issue based on a discriminatory motive.

ANALYSIS AND FINDINGS

Initially, we will address Complainant’s contention that the AJ erred in dismissing his hearing
request and remanding the matter to the Agency. The AJ dismissed Complainant's hearing
request on the basis of his failure to comply with an Order and for disrespectful behavior toward
Agency Counsel in refusing to allow her to participate in the taking of depositions. The AJ's
Order of Dismissal detailed Complainant's behavior in the hearing process for this complaint,
and referenced Complainant's previous history in the hearing process for other complaints with
Commission AJs. Complainant has been previously warned that if he continued to engage in
contumacious conduct, it may result in sanctions “including suspension and disqualification from
further hearings.” Despite these past Orders, warnings, and sanctions, Complainant persisted in
some of the same conduct in the instant case.

The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29
C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), Chap. 7, Sec. III(D) (Nov. 9, 1999). An AJ has inherent powers to
conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see
Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21. 2005); Rountree v. Dep't
of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). We find that the AJ was well
within the bounds of discretion when he dismissed Complainant's hearing request, as clearly, no
other sanction would seem to have any effect on modifying Complainant's behavior.

Next, as this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
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To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction 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, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of sex, race,
and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record shows that Complainant was one of 223
applicants for the position at issue and that of those, 17 applicants were selected. The selecting
official stated that Complainant was not among the applicants selected for a vacancy because he
had previously been terminated from a similar position, and that she did not knowingly select
anyone who had been terminated from a position with the Agency. We find that Complainant
failed to proffer any evidence to show that his nonselection was motivated by discriminatory or
retaliatory animus, or that the Agency’s articulated reason for its actions was pretextual.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
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Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 13, 2017
Date