U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ted L.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019003142 Hearing No. 570-2017-00148X Agency No. IRS-15-1634-F DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated March 11, 2019, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst, GS- 0501-13, in the Agency’s Wage and Investment Accounting Payment Branch located in Lanham, Maryland. On December 30, 2015, Complainant filed his complaint, which was amended later, alleging discrimination in reprisal for prior EEO activity when: 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. 20190031422 (1) His annual evaluation, due in May 2015, was delayed until July 2015; he was not afforded an evaluation meeting; and his rating score (4.4) did not reflect his knowledge and experience. (2) Management advised him that he would solely be responsible for the Remittance Strategy Paper Check Conversion Program (RSPCC). (3) Management issued his 2015 annual evaluation with a rating of 4.4. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 1, 2018, the AJ issued a Notice of Proposed Summary Judgment. Both parties filed replies to the AJ’s notice. On April 5, 2018, the AJ issued an Order Vacating Notice of Intent to Issue Summary Judgment. The parties were allowed to participate in discovery. On July 16, 2018, the Agency submitted its second Motion for Summary Judgment. Complainant submitted an Opposition to the Agency’s Motion for Summary Judgment on July 29, 2018. On February 28, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. Therein, the AJ adopted and incorporated by reference the Agency’s statement of undisputed facts in the Agency’s motion. In his decision, the AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, found that the Agency articulated legitimate, nondiscriminatory reasons for its action. Regarding claim (1), the AJ indicated that the delayed evaluation occurred because Complainant’s managers chose to discuss his performance with Labor Relations officials to ascertain whether his rating could be lowered. Regarding claim (2), Complainant was added to the RSPCC program to assist with the expansion efforts in 2010. By 2013, there had been a decline in payments processed through the RSPCC. Management thus decided that only one full time analyst, Complainant, was needed to manage the program. Regarding claim (3), Complainant was previously provided with multiple counseling memos notifying him of his performance issues. On January 20, 2015, he was notified that his rating would be lowered if his performance did not improve. Based on the foregoing, the AJ found that Complainant failed to substantiate his claims that the Agency subjected him to disparate treatment based on reprisal for prior EEO activity. The Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final order. ANALYSIS AND FINDINGS 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. 20190031423 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 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 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 he or she 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, nondiscriminatory reason for its actions. Texas Department of Community Affairs 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 Center v. Hicks, 509 U.S. 502 (1993). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. Furthermore, the AJ determined Complainant did not establish discriminatory animus or retaliatory intent. 20190031424 Regarding claim (1), Complainant’s then supervisor (S1), who was detailed to that position during the period of April 2014 through July 2015, indicated that Complainant received a 2013 performance appraisal rating of 4.4 (Exceeds Fully Successful) from his prior supervisor. After discussions with Labor Relations to lower Complainant’s 2014 rating at issue due to performance issues, S1 decided to issue the same 4.4 rating due to insufficient supporting documentation. Regarding claim (2), S1 indicated that on June 10, 2014, Complainant was assigned to the RSPCC, which was implemented in 2008, with the E-Pay team as the sole full-time analyst since the workload in that program declined since 2013, and it only required one employee to maintain the program. S1 noted that Complainant previously expressed a lack of his exposure to certain aspects of the RSPCC program for many years. S1 stated in an effort to gain full exposure of the RSPCC, Complainant was given the primary role for the program in June 2014. S1 noted Complainant was asked on many occasions to provide a list of details on the RSPCC program where he lacked exposure; however, S1 never received a list from Complainant. S1 stated while acting in the primary role, Complainant did not express his workload in the RSPCC was too heavy and/or ask for assistance. Regarding claim (3), the record indicates that on July 29, 2014, October 1, 20142, November 18, 2014, and January 20, 2015, S1 issued Complainant written performance counseling due to his poor work performance. Complainant received the same 4.4 rating for his 2015 performance appraisal as he did for 2014 and 2013. After a review of the record and all evidence submitted on appeal, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the AJ found, and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged.3 CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2 The record contains a copy of an August/September Performance Counseling signed by S1 indicating a discussion with Complainant on October 1, 2014, and noting Complainant refused to sign. 3 It is noted that Complainant failed to submit an affidavit during the investigation of the complaint despite repeated requests to do so by the assigned investigator. 29 C.F.R. § 1614.108(c)(1). 20190031425 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. 20190031426 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 August 24, 2020 Date
