Delfina Y.,1 Complainant,v.L. Paige Marvel, Chief Judge, U.S. Tax Court, Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120171334 (E.E.O.C. Feb. 8, 2019)

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

Delfina Y.,1
Complainant,

v.

L. Paige Marvel,
Chief Judge,
U.S. Tax Court,
Agency.

Appeal No. 0120171334

Agency No. EDR 2016-01

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency final decision, dated February 9, 2017, concerning an equal
employment opportunity (EEO) complaint claiming employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

In November 2014, Complainant accepted the Agency’s offer to work as a Petitions Clerk for the
Petitions and Intake Section of the U.S. Tax Court in Washington, D.C. The offer letter informed
Complainant that the Excepted Service position was contingent upon a satisfactory background
check and was subject to a one-year probationary period. According to the Agency, “because of
the Court’s unique role in the litigation of Federal tax disputes, it is essential that all Tax Court
employees comply with Federal tax laws, including the timely filing of tax returns and payment
of taxes.”

Complainant reported to work on December 2014. Thereafter, on January 26, 2015, she was
terminated from her position after the Agency determined that Complainant had not timely filed
her Federal income tax returns for 2011, 2012, or 2013, and had not fully paid her Federal income

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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tax for 2010, 2011, or 2012. Believing that her termination was discriminatory, Complainant
utilized the Agency’s internal EEO process.

Pursuant to the Agency’s Fair Employment Practices System (FEPS), Complainant initiated EEO
counseling and requested mediation when counseling concluded. After the mediation period,
Complainant was issued a notice of right to file a formal complaint. On October 17, 2016,
Complainant filed her complaint. Complainant alleged discrimination based on her race (African-
American), sex (female), age, and in reprisal for prior protected EEO activity. In addition to her
allegedly discriminatory termination, Complainant also claimed she was subjected to “on-going
discriminatory treatment from older Caucasian employees in upper-level positions”, that allegedly
included stereotypical comments, demeaning looks, and unauthorized checks into her employment
history.

The complaint was assigned to an Agency Hearing Officer2, who ordered the parties to submit a
statement of facts and supporting documents by November 17, 2016. Soon thereafter, Complainant
requested that her case be transferred to this Commission for a hearing. The Hearing Officer,
however, denied the request, simply reasoning that “[u]nder the FEPS . . . it is appropriate for [me]
to consider her complaint.” After granting several extension requests, the Hearing Officer ordered
that submissions be provided by January 6, 2017, and “a hearing, if any, will be held by February
10, 2017.”

On February 9, 2017, without a hearing, the Hearing Officer issued a Final Decision finding no
discrimination. The Hearing Officer reasoned that the Agency provided a legitimate, non-
discriminatory reason for terminating Complainant – that she failed to timely file and fully pay her
Federal taxes. Complainant failed to show that a similarly situated individual outside of her
protected bases was treated differently.

Later than same day, Complainant filed a motion with the Hearing Officer seeking rescission of
the Final Decision. In addition to disputing the Hearing Officer’s legal conclusions, Complainant
asserted that she was not provided with adequate information about the FEPS process, Agency
officials in the FEPS process acted in bad faith, and she was not provided with appropriate notice
regarding the repeatedly rescheduled hearing date.

The following week, the Hearing Officer ordered the Agency to submit a response. The Agency
provided a detailed response on February 21, 2017. In her February 21, 2017 reply, Complainant
reiterated her request that her case be forwarded to this Commission for a hearing.

Thereafter, Complainant filed the instant appeal seeking the review of those orders by the FEPS
Hearing Officer.

2 The instant record reflects that this duty was performed by the Tax Court Acting Chief Judge. In
accordance with the Agency’s FEPS, the EEO Counselor, mediator, and EEO Director duties were
performed by various Tax Court Judges.
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In response, the Agency requests that Complainant’s appeal be dismissed for lack of jurisdiction.
Specifically, citing 29 C.F.R. § 1614.103(b)(4), the Agency acknowledges that the Commission
has authority over “the judicial branch of the Federal government having positions in the
competitive service” (emphasis added). The Agency argues, however, that the Tax Court does not
have competitive service positions as set forth in the current version of 26 U.S.C. § 7471(a), and
notes that Complainant’s position was in the excepted service.

ANALYSIS AND FINDINGS

As originally enacted, Title VII's protections against unlawful discrimination did not apply to
federal government employees. The Act was amended in 1972 to extend its coverage to many, but
not all, federal employees. Newman v. The Presidio Trust, EEOC Request No. 05A30686 (March
18, 2004). Added by the 1972 amendments, Section 717(a) of Title VII provides, in part:

All personnel actions affecting employees or applicants for employment (except
with regard to aliens employed outside the limits of the United States) in military
departments as defined in section 102 of Title 5, in executive agencies as defined
in section 105 of Title 5, . . . in the United States Postal Service and the Postal Rate
Commission, in those units of the Government of the District of Columbia having
positions in the competitive service, and in those units of the legislative and judicial
branches of the Federal Government having positions in the competitive service,
and in the Library of Congress shall be made free from any discrimination based
on race, color, religion, sex, or national origin. (Emphasis added.)

42 U.S.C. § 2000e-16(a).

This definition, as it relates to judicial branch employees, was incorporated into the Commission's
regulation at 29 C.F.R. § 1614.103 setting out the scope of the Commission's federal sector
administrative complaint process:

§ 1614.103 Complaints of discrimination covered by this part.

(b) This part applies to:

. . .
(4) All units of the judicial branch of the Federal government having
positions in the competitive service, except for complaints under the
Rehabilitation Act;
(Emphasis added.)

Prior Commission decisions have established that the U.S. Tax Court is part of the judicial branch.
See DeLuca v. U.S. Tax Court, EEOC Appeal No. 01A03404 (August 22, 2000) (citing Freytag
v. Commission of Internal Revenue, 501 U.S. 868 (1991)). While we have previously considered
EEO complaints from U.S. Tax Court employees, a close review of 26 U.S.C. § 7471(a) reveals
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that such employees are no longer in the competitive service and under the Commission’s
jurisdiction. Effective January 4, 2011, 26 U.S.C. § 7471(a)(3) provides that: “[t]he Tax Court
may appoint necessary employees without regard to the provisions of title 5, United States Code,
governing appointments in the competitive service. Such employees shall be subject to removal
by the Tax Court.” Moreover, the Tax Court shall “promulgate procedures for resolving complaints
of discrimination by employees and applicants for employment.” 26 U.S.C. 7471(a)(6)(A).
Similar determinations, finding an employee’s position to be in the excepted service, were
considered to be outside the Commission’s jurisdiction. See Complainant v. U.S. Courts, EEOC
Appeal No. 0120141927 (Jan. 27, 2017) (finding Commission does not have jurisdiction over U.S.
District Court probation officer’s Title VII or Rehab. Act claims), citing Semper v. United States,
694 F.3d 90, 94 (Fed Cir. 2012) (federal probation officer was in the “excepted service” and, by
definition, not in the competitive service) and Dotson v. Griesa, 398 F.3d 163 (2nd Cir. 2005)
(“employees of the judicial branch, including probation officers . . . qualify as excepted service
personnel because they are neither in the executive branch nor included in the competitive service
by statute.”).

CONCLUSION

Accordingly, Complainant’s appeal is hereby DISMISSED.

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
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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. 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

February 8, 2019
Date