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

Equal Employment Opportunity Commission

Aug 14, 2018

0120162549 (E.E.O.C. Aug. 14, 2018)

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

Adina P.,1
Complainant,

v.

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

Appeal No. 0120162549

Agency No. IRS-15-1580-F

DECISION

On August 1, 2016, 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
July 15, 2016, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue
Agent - Reviewer, GS-0512-12, at the Agency’s Small Business/Self-Employed, Technical
Services facility in Milwaukee, Wisconsin. On September 29, 2015, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of race (Hispanic),
national origin (Mexican), and reprisal for prior protected EEO activity when:

1. management ignored concerns Complainant expressed with regard to her workload
being excessive;

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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2. her manager used inaccurate information and an unrepresentative sample of work
to lower her rating in Critical Job Element 5B;

3. her manager accused her of leaving work early and her manager sent an email
warning Complainant that she must comply with the 30-minute lunch break per six
work hours policy, and that future violations would be disciplined; and

4. her manager criticized her and threatened to lower her rating for not submitting her
Form 4502 on time, while ignoring other employees’ late submissions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued 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).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

Claim #1 (Excessive Workload)

To establish a prima facie case of discrimination based on race, sex, or disability, Complainant
must demonstrate that (1) she was a member of a protected class; (2) she was subjected to an
adverse employment action concerning a term, condition, or privilege of employment; and (3) she
was treated differently than similarly situated employees outside her protected class, or there is
some other evidentiary link between membership in the protected class and the adverse
employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (April 14,
2008); Saenz v. Dep’t of the Navy, EEOC Request No. 05950927 (January 9, 1998).

Complainant has not established a prima facie case of disparate treatment discrimination with
respect to this claim. Complainant alleges that she was assigned a discriminatorily large case load
as compared to her co-workers. Complainant’s proffered “similarly situated” comparators do not
meet the well-established criteria that all relevant aspects of the comparative employees’ work
situation must be identical or nearly identical, i.e., that the employees report to the same supervisor,
perform the same job function, and work during the same time periods.
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See Cantu v. Dep't of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) citing
Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). In fact, none of the
comparators she cites were Complaint’s immediate co-workers. All of them had different
supervisors than she did. ROI at 259.

In addition, Complainant has not shown that her comparators were treated more favorably than
she was by the Agency. She has not established that her workload was greater than those of the
comparators. The only evidence Complainant adduces on this point is that other employees were
assigned cases from a lesser number of states than she was. Complainant was assigned to review
cases from 10 states. All other reviewers were assigned cases from 7 or fewer states. ROI at 119.
Given the large variation in the population of the 50 U.S. states, this information is not probative
of the size of the comparators’ workloads without data on the number of individual cases generated
by each of the states involved. ROI at 259.

Claim #2 (Rating Lowered)

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). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

In this case, according to the Agency, Complainant’s rating on Critical Element 5B (Prioritizes
Work) for the relevant period was reduced from “Exceeds” to “Meets” because the examples of
Complainant’s work that were reviewed were not properly coded by Complainant. ROI at 262.
This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has adduced
no evidence that the Agency’s reason for its action was a pretext designed to conceal
discriminatory animus. Complainant does not dispute that the samples of her work in question
contained errors.

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Claim #3 (Warning Re Attendance) and Claim #4 (Criticism and Threats)

The Commission has consistently held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render an individual aggrieved for the
purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995). These
claims do not allege that any concrete action was taken against Complainant as a result of her
apparent practice of leaving work early (Claim #3) or her failure to timely submit certain required
documentation (Claim #4). In the case of Claim #3, the allegation is that she was warned of later
discipline. In Claim #4, it is allegedly that she was threatened with a future lowered rating. In
neither case, according to the allegations, did she suffer any deprivation. Accordingly,
Complainant fails to establish her prima facie cases on these claims as she has not shown that she
was subjected to an adverse employment action concerning a term, condition, or privilege of
employment.

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 final decision finding that Complainant
did not establish that she was discriminated against as alleged.

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.
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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.
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 14, 2018
Date