Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 11, 2015

0120130904 (E.E.O.C. Mar. 11, 2015)

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

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120130904

Agency No. IRS110788F

DECISION
On December 26, 2012, Complainant filed an appeal from the Agency’s November 20, 2012
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. The Commission deems the appeal timely and accepts
it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 a Human Resources
Specialist (HRS), GS-0201-13, employed with the Employment, Talent and Security Division
(ETS), Human Capital Office (HCO), located in Lanham, Maryland. On November 28, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American) and color (Brown) when during her time in the Senior
Manager Readiness Program (SMRP), she was not given the same developmental assignments
and detail opportunities as other participants.

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). In accordance with Complainant’s request, 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.

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ANALYSIS AND FINDINGS
Complainant alleged that fellow SMRP participants (C1, Caucasian), (C2, Caucasian) (C3,
Caucasian) and (S1, African-American, lighter skin than Complainant)1

were treated more
favorably than she was during the relevant time period. The record shows that Complainant
was the only SMRP participant who did not fulfill the requirement of serving 60 days in a
senior-level manager position. All of the comparators Complainant listed fulfilled the
requirement.
The record shows that C1 was serving as Acting Associate Director, Employment Operations,
ETS, when she entered the SMRP. This was a position which satisfied the senior-level
manager requirement under the SMRP. C1 stated that in 2010 she competitively selected S1
who had been Acting Chief, WEB, for three (3) months in 2009, as the temporary Chief,
WEB, and ultimately selected her to fill the position permanently. The record also shows that
S1's 2010 appointment as temporary Chief fulfilled the SMRP requirement of serving in a
senior-level manager position. With respect to C2, the evidence shows that an individual not
in Complainant's management chain (M1) arranged for C2's detail as Acting Branch Chief,
Andover, which satisfied the SMRP requirement pertaining to a senior-level manager position.
Regarding C3, the evidence shows that she had only one detail, as Acting Branch Chief,
Andover, during her participation in the SMRP program. The evidence indicates that M1 also
arranged this detail.

Management officials explained that Complainant was detailed as Section Chief, WEB, because
it was a good opportunity for her to demonstrate her skills as a frontline manager, which could
be used to help her attain a future senior-level manager position. Management officials also
stated that they did not consider the impact on Complainant's ability to be non-competitively
promoted with increased pay for a period of one year after the detail ended when they choose
this detail for her. Further, management officials stated that Complainant was later offered
details to senior-level manager positions in Ogden and Brookhaven, which she turned down.
Management officials acknowledged the positions would not have involved increased pay, but
that was something that they had no control over since she had recently received an increase in
pay from the previous detail.

Complainant contended that newsletter and mock interview assignments were not
developmental in nature and she was not provided appropriate guidance. Complainant denied
she was offered the Brookhaven detail and stated she turned down the Ogden detail because the
offer was not in accordance with offers made to other SMRP participants, referring to the fact
that she would not receive increased pay during the period of the detail.

We conclude that Complainant has not demonstrated that the Agency’s articulated, legitimate
nondiscriminatory reasons for Complainant’s assignments or lack of assignments, were related

1 S1 was not only a SMRP participant, she was Complainant’s supervisor.
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to her race and/or color. The preponderance of the evidence shows that, unlike S1 and C1,
Complainant had not served in an acting senior-level manager position with the Agency by the
time she entered the SMRP and therefore was not as easy to place in a temporary senior-level
manager position. The evidence also shows that C3 was provided a developmental opportunity
as Acting Branch Chief, which the evidence indicates was arranged through her direct
supervisor, M1, who was not in Complainant's chain of command. The evidence also
demonstrates that C2 was detailed as Acting Branch Chief in place of M1 who also arranged
this detail. The evidence also shows that C2 was detailed to the Brookhaven position, an
arrangement made by M1 in concert with C1.

While Complainant disputes the fact that she was actually offered the Brookhaven position, the
undisputed record shows that she was offered a similar detail to Ogden, which she declined.
Although Complainant perceived herself as being treated less favorably than other SMRP
participants because she would not have received increased pay on the Ogden detail, she
proffered no evidence to suggest that increased pay should have been available to her, as she
had already received enhanced compensation when she was promoted earlier in the program.
Complainant also did not proffer evidence that any other SMRP participant was offered
increased pay under such circumstances.

In short, the weight of the evidence shows that comparators S1 and C1 were treated differently
because of their managerial experience, and comparator C3 gained her senior-level experience
based on an appointment by her direct supervisor, M1, who had no involvement in
Complainant's SMRP experience. With respect to C2, the evidence supports the conclusion
that S2, who also was in Complainant's chain of command, assisted her in obtaining one of her
senior-level manager details. However, the undisputed evidence shows that management
offered a similar detail, in Ogden, to Complainant who turned it down.

CONCLUSION
Therefore, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 11, 2015