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

Equal Employment Opportunity Commission

Oct 21, 2020

2019005281 (E.E.O.C. Oct. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tonya C.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019005281 Hearing No. 440-2018-00055X Agency No. IRS-17-0477-F DECISION On August 13, 2019, 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 August 5, 2019 final order concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent (IRA), GS-0512-11, for the Agency’s Small Business/Self-Employed (SB/SE), Examination Operations, Field Examination, Exam-Midwest Area, Planning and Special Projects (PSP) at the Agency’s facility in Chicago, Illinois. Complainant had signed a global settlement agreement with the Agency on May 6, 2016, agreeing to a reassignment from her position as an IRA, GS-0512-11, in the Agency’s Green Bay, Wisconsin office to an IRA, GS-0512-11, in the Agency’s Chicago office. She transferred to the Chicago office on July 10, 2016. 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. 2019005281 2 Once in the Chicago office, Complainant stated she was assigned easier work that was typically given to a Tax Specialist/Tax Compliance Officer/Tax Auditor/Office Auditor. In July 2016, Complainant contacted Agency officials and requested that she be reassigned back to her position in Green Bay because she believed the position to which she was voluntarily reassigned was lower- graded.2 On November 2, 2016, Complainant requested a desk audit of her new position by an HR Specialist (HRS). HRS completed the desk audit on April 19, 2017, concluding that Complainant’s position description was not an accurate representation of her actual duties and responsibilities because she was assigned lower-graded work. An email chain shows the desk audit was sent to the Acting Associate Director, Position Management and Classification on May 1, 2017, for his approval and signature. The desk audit was finalized on May 15, 2017 and sent to Management the same day. Complainant received a copy on June 1, 2017. Complainant’s second-level supervisor (S2) had only been in the position since May 12, 2017 and was only made aware of the desk audit results on May 16, 2017. On June 1, 2017, S2 sent Complainant an email with the Desk Audit results, explaining that management did not agree that she was performing grade nine work because the desk audit did not consider that she was assigned easier work to become familiar with working claim cases through the process. S2 stated that as Complainant progressed, her work had become increasingly complex and was at the grade 11 level. On June 8, 2017, S2 informed Complainant she would be assigned responsibilities commensurate with the GS-0512-11 level as described in the current position description, which was one of the corrective options listed in the desk audit. During this call, S2 pulled up her inventory information, showing 39 percent of Complainant’s work was higher-graded work. S2 testified that management did act on the results of the desk audit and assigned Complainant responsibilities commensurate with her job description and grade level, demonstrated by the higher graded activity codes assigned to Complainant. S2 believed Complainant’s manager had assigned her work consistent of that which would be assigned to any new employee in the position at the beginning of their assignment to PSP, gradually increasing to more complex work. On November 13, 2017, Complainant voluntarily resigned from her employment with the Agency. On June 19, 2017, Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of age (born September 1967), sex (female), and in reprisal for prior protected activity when she discovered on June 2, 2017, that the Agency had not acted on the results of a desk audit of her position completed on April 19, 2017.3 2 In Maricela P. v. Dep’t of the Treasury, EEOC Appeal No. 0120162604 (Jan. 12, 2017), req. for reconsid. den’d, the Commission determined that the Agency had not breached the settlement agreement as the reassignment occurred as agreed upon and that if Complainant wanted to be guaranteed certain duties in her new position, she should have included such as part of the settlement agreement. 3 The Agency dismissed Complainant’s second claim of whether she was discriminated against on the same bases when the Area Manager instructed Complainant to cease using racial epithets on 2019005281 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 30, 2018, Motion for Summary Judgement and issued a decision without a hearing on July 18, 2019. In the decision, the AJ determined that Complainant failed to establish a prima facie case of discrimination or retaliation. The AJ determined that the record showed the complexity of Complainant’s work had increased since the desk audit was conducted, and her work was consistent with her pay and grade level by June 2, 2017. The AJ further found that Complainant had not shown any connection aside from her personal assertions between her protected bases and the alleged adverse action taken by the Agency. The AJ determined that Complainant failed to show that the Agency’s articulated legitimate, non-discriminatory and non-retaliatory reasons were pretext for the Agency’s actions. Complainant’s training was not complete, so she was not receiving grade-appropriate work when she received the desk audit. The Agency complied with the desk audit by assigning Complainant work consistent with her job description in June 2017. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. STANDARD OF REVIEW The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 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 Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision 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. April 13, 2017, for failure to state a claim under 29 C.F.R. § 1614.107(b). Complainant raised no challenges regarding this matter and we will not address it further herein. 2019005281 4 To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission agrees with the AJ that Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. S2 explained that it is common for there to be a transition period when a new employee starts a position where they had no prior experience, which he also explained in his June 1, 2017, email to Complainant. ROI, at 150, 264. Complainant was paid at the GS-11 level and Agency management informed Complainant of its strategy to increase the complexity of her assignments as she became more accustomed to the work. Additionally, the record shows management did act on the results of the desk audit and assigned Complainant responsibilities commensurate with her job description and grade level, demonstrated by the higher graded activity codes assigned to Complainant. Id. at 158, 164-165. 2019005281 5 The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the bases of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Commission to AFFIRM the Agency’s final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate, and a preponderance of the evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2019005281 6 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). 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 October 21, 2020 Date