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

Equal Employment Opportunity Commission

Jul 13, 2017

0120170592 (E.E.O.C. Jul. 13, 2017)

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

Brant C,1
Complainant,

v.

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

Appeal No. 0120170592

Hearing No. 560-2014-00323X

Agency No. IRS-13-0103-F

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October
26, 2016, final order 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 order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency. On January 8, 2013, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of his race (Black), sex (male),
and in reprisal for prior protected EEO activity when:

1. on November 7, 2012, he was not selected for the position of Contact Representative
under vacancy announcement number 12KC2-WIXK062-0965-05-GF;
2. on December 3, 2012, he was not selected for the position of Contact Representative
under vacancy announcement number 12KC2-WIXS063-0962-04-KH;

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.
0120170592

2
3. on January 10, 2013, he was not selected for the position of Tax Examining
Technician under vacancy announcement number 12KC2-WIX0071-0592-04-GF;
4. on January 11, 2013, he was not selected for the position of Tax Examining
Technician under vacancy announcement number 13CS3-WIX0070-0592-04-GF;
5. on January 11, 2013, he was not selected for the position of Tax Examining Clerk
under vacancy announcement number 13CS3-WIX0064-0592-04-CP;
6. on February 7, 2013, he was not selected for the position of Tax Examining Clerk
under vacancy announcement number 13CS3-WIX-0099-0592-04-GF;
7. on February 24, 2013, he was not selected for the position of Tax Examining Clerk
under vacancy announcement number 13CS3-WIX0089-0592-05-GF;
8. on March 8, 2013, he was not selected for the position of Tax Examining Clerk under
vacancy announcement number 13CS3-WIX0052-0592-04-IR;
9. on March 27, 2013, he was not selected for the position of Clerk under vacancy
announcement number 13CS3-WIX0037-303-2T4-KH;
10. on April 5, 2013, he was not selected for the position of Correspondence Examination
Technician under vacancy announcement number 13CS3-WIX0120-0503-05-MT;
and
11. on May 1, 2013, he was not selected for the position of Contact Representative
(Collection Representative) under vacancy announcement number 13-CS3-WIX0126-
0962-06-MT.

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
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
found that, after viewing the evidence in a light most favorable to Complainant, a decision
without a hearing was appropriate with respect to claims (2) - (6) and (8) - (11), as there were no
genuine issues of material fact in dispute. As to claims (1) and (7), the AJ held a hearing on July
14, 2016, and issued a decision on October 13, 2016. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged. On appeal, Complainant contends that the AJ erred in issuing a
partial summary judgment and reiterates his contention that he was subjected to unlawful
discrimination.

ANALYSIS AND FINDINGS

Claims (2) – (6) and (8) – (11)

With respect to the claims addressed 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).
The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
0120170592

3
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence,
it is not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the
Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a partial decision without a
hearing was appropriate, as no genuine dispute of material fact exists. 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 reflects that Complainant was first employed with
the Agency as a tax examining technician but that his employment was terminated on August 25,
2006, for absence without leave. Complainant was rehired by the Agency in 2012 as a seasonal
tax examining clerk and was subject to a one-year probationary period, however his employment
was once again terminated, effective May 20, 2012, for unsatisfactory work performance. The
record further shows that since his second termination, Complainant has applied for numerous
positions with the Agency, including the positions at issue in the instant complaint. With respect
to claim (2), the record shows that Complainant cancelled his scheduled interview and was,
therefore, considered to have declined the position. As to claims (3), (4), (8), and (9), the record
shows that Complainant was not recommended for selection for any of these vacant positions
because he had been terminated from employment with the Agency for unsatisfactory
performance. With respect to claim (5), the record shows that all vacancies were filled by
internal candidates and that the vacancy announcement under which Complainant applied for the
0120170592

4
position was cancelled as no external candidates were considered. As to claims (6), (10), and
(11), the record shows that the vacancy announcements for these positions were cancelled and no
selections were made. Upon review of the record, we concur with the AJ’s finding that
Complainant failed to proffer any persuasive evidence to show that the Agency’s articulated
reasons for these nonselections were a pretext for unlawful race, sex, or reprisal discrimination.

Claims (1) and (7)

With respect to the remaining claims, pursuant to 29 C.F.R. § 1614.405(a), all post-hearing
factual findings by an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing
was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Here, the record shows that, with respect to claim (1), the Agency advertised for approximately
140 vacancies for the position of Seasonal Contact Representative. Complainant was deemed
qualified and was interviewed for the position. The record also shows, however, that the
selecting official for the position at issue testified that Complainant, along with two other
applicants, was not selected for any of the vacant positions because he had previously been
terminated from Agency employment. As to claim (7), the Agency advertised for 45 vacant
position of Tax Examining Clerk and, once again, although Complainant was deemed qualified
for the position, he was excluded from selection based on his prior termination. We concur with
the AJ’s finding that Complainant failed to show that his nonselections were motivated by
discriminatory or retaliatory animus.

CONCLUSION

We discern no basis to disturb the AJ’s decision and the Agency’s final order finding no
discrimination is AFFIRMED.

0120170592

5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
0120170592

6
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

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

July 13, 2017
Date