[Redacted], Herb P., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2020005464 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020005464 Hearing No. 430-2020-00135X Agency No. IRS-19-1035-F DECISION On September 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 11, 2020, 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. BACKGROUND During the relevant time, Complainant worked as an Internal Revenue Agent at the Agency’s Large Business and International Division in Greensboro, North Carolina. Complainant stated that Team Manager performed workload reviews prior to the mid-year and annual performance evaluations. Record of Investigation (ROI) at 56. For his Fiscal Year 2018 annual performance evaluation, Complainant received “exceeds expectation” for every critical job element (CJE) except CJE IIA (Tax Law). ROI at 57, 139. The narrative for Section IIA noted that Complainant, generally, interpreted and applied the tax laws appropriately. 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. 2020005464 2 On one specific case, however, Team Manager found Complainant’s interpretation of Section 162 to be too restrictive. ROI at 144. Complainant and Team Manager exchanged numerous emails concerning this case. ROI at 216-31. Territory Manager stated that an employee must consistently apply the law in all cases to receive a rating above “meets.” ROI at 289. On the December 2019 performance rating, Complainant was awarded an identical rating, to include all CJEs, as his award the previous year. Agency Response Brief at 33, Exhibit 1. As before, Team Manager asserted that Complainant generally interpreted and applied tax laws appropriately. He went on to state that Complainant, at times, had issues with his application of tax law and continued to apply at risk rules after reducing taxpayer stock basis to zero. The evaluation also stated that Complainant was reluctant to stop working the issue even after a discussion with a partnership Small and Medium-Sized Enterprise. Id. Complainant asserted that he deserved a higher rating. He stated that Team Manager did not give him a proper reason for his rating. ROI at 59. Complainant said that he applied relevant tax laws with little or no assistance and opined that he had more knowledge and understanding than subject matter experts, who serve at a higher grade. ROI at 58. Complainant further stated that Team Manager encouraged co-workers, managers, taxpayers, and representatives to disagree with Complainant. ROI at 58. Team Manager countered that Counsel and Industry Practice Networks are independent entities, but Complainant does not like when they disagree with his interpretation or application of law. ROI at 132. Complainant further asserted that Team Manager “takes the taxpayers’ positions even though the taxpayers’ positions are incorrect, unsupported, and/or incomplete.” ROI at 58. Complainant alleged that Team Manager erred in not adhering to policy which he believed was evidence of discrimination. ROI at 56. Complainant stated that, according to policies, Team Manager is supposed to consider Complainant’s positions, feedback, and rebuttal, but that Team Manager shows no interest. ROI at 56. Complaint also stated that he is supposed to be given the opportunity to perform a self-assessment, but due to a furlough from mid-December 2018 through January 2019, and he did not have time to complete a self-assessment.2 ROI at 56. Team Manager disputed this assertion, stating that Complainant was allowed a self-assessment that resulted in a raise in his overall evaluation from a 4.6 to a 4.8. ROI at 133. Complainant contended that Team Manager “did not properly consider my interpretation of tax laws and showed no interest in my interpretation. [Team Manager] did not fairly [evaluate] my case work, skills, and knowledge.” ROI at 56. Complainant stated that Team Manager harassed and discriminated against him by slowing down his work and/or requiring him to discontinue working on an issue “rather than giving me credit for my interpretation of the tax laws and allowing me to properly resolve the issues.” ROI at 57. 2 We note that, in this argument, Complainant alleged a breach of the collective bargaining agreement (CBA). The proper forum to raise a claim regarding a violation of the CBA is through the grievance process under the CBA or before the Federal Labor Relations Authority. See Simensen v. U.S, Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002). 2020005464 3 Team Manager refuted this assertion, claiming that he told Complainant to stop working on issues when directed to do so by Agency counsel or industry experts. Team Manager noted that Complainant did not like receiving direction from his manager. ROI at 131-32. Complainant identified two individuals, Co-Worker 1 (CW1), a white, non-Christian male, and Co-Worker 2 (CW2), a white, Christian male, whom he argued, worked directly or indirectly with Team Manager against him so that CW1 and CW2 would receive a higher than or similar overall ratings as and more opportunities than Complainant. ROI at 61-2. CW1, as noted by Team Manager, was a Grade 14 senior agent, a different position than Complainant held. ROI at 134, 271. CW2 held an equivalent position and obtained an “exceeds” in CJE IIA; however, he scored a “meets” rating on CJE IVB and CJE VA, lower than Complainant’s scores on those CJEs. ROI at 139, 264. Territory Manager contradicted that CW1 and CW2 got more opportunities, noting that Complainant was given the opportunity to talk to Territory Manager, and that Complainant took an opportunity in Raleigh, North Carolina, in 2019. ROI at 290. On July 9, 2019, Complainant filed an EEO complaint, and amended this complaint on January 6, 2020, alleging that the Agency discriminated against him on the bases of race (African- American), sex (male), religion (Baptist), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 30, 2019, Complainant received an annual appraisal (the “2018 Appraisal”) containing a lower rating than he deserved on Critical Element (CJE IIA. Tax Law); and 2. On December 16, 2019, Complainant received a “departure” and annual appraisal (the “2019 Appraisal”) containing a lower rating than he deserved for a Critical Job Element (CJE IIA. Tax Law). 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 11, 2020, motion for a decision without a hearing and issued a decision without a hearing on August 12, 2020. 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. The instant appeal followed. CONTENTIONS ON APPEAL Complainant states that the AJ did not properly consider his claims of retaliation based upon suspicious timing. He further asserts that the Agency did not bear its burden of production regarding retaliation. Complainant alleges that the AJ did not properly address his claims, as Complainant is not challenging his overall rating, rather he is challenging his rating to CJE IIA. 2020005464 4 Complainant, finally, charges that the AJ was improper in the evidence that the AJ did and did not allow. Complainant appears to raise the issue, in his brief, that the Agency inhibited his ability to participate in the EEO process regarding additional claims.3 The Agency claims that Complainant has not established a prima facie case for discrimination. Even if Complainant has established such a prima facie case, they argue, Complainant has not offered evidence that the Agency’s legitimate, nondiscriminatory reason for his performance rating was a pretext to discrimination. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Emp. Opportunity Mgmt. Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s (AJ) determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 3 A review of the record reflects that this issue was not counseled. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, only the claims as specified on the AJ’s decision will be addressed in this decision. 2020005464 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserts that the AJ excluded specific evidence during the pre-hearing process. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Just., EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). As Complainant has not provided any evidence excluded by the AJ, the Commission cannot determine whether any such evidence would be outcome dispositive. As such, to reverse based upon such excluded evidence would be to usurp the role of the AJ, and the Commission declines to do so here. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant meets the prima facie case for race and retaliatory discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. 2020005464 6 Specifically, the Team Manager pointed to mistakes that Complainant made in his legal application to specific cases for both performance reviews, and Territory Manager asserted that more consistent application of tax law was required for a higher rating. As such, Team Manager had a legitimate non-discriminatory reason to afford, and Territory Manager had a legitimate non-discriminatory reason to approve, Complainant’s “meets” rating regarding CJE IIA. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Complainant asserted that the Agency did not follow a number of procedures, including agreed-upon procedures set between the Union and the Agency. Even if this is the case, there is no evidence that any error or mistake on the part of the Agency in this regard is a pretext for discrimination. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Even if an agreement was present that was not fulfilled, Complainant has not provided sufficient evidence that this was retaliatory, as opposed to merely poor management or mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. Complainant also argued that his rating should be higher because his work product was worthy of it. He stated that he worked areas of tax law that co-workers will not work and do not understand as well as he does. Complainant provides no proof for this outside of his own assessment of his abilities. As such, we find that Complainant failed to meet his burden of proof by a preponderance of the evidence that there was discriminatory intent in Team Manager’s decision to give Complainant a “meets” rating for CJE IIA in either 2018 or 2019. Harassment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994); see also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision to implement the AJ’s decision finding no discrimination. 2020005464 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2020005464 8 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 March 24, 2022 Date