0120130368
09-25-2014
Complainant v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120130368
Hearing No. 460-2012-00074X
Agency No. IRS-11-0691-F
DECISION
Complainant timely filed an appeal from the Agency's September 24, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him on the bases of sex (male) and age (60), and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Appeals Officer, GS-930-13, in the Appeals Division of the Agency's Office of Appeals in Houston, Texas. On September 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (60) when, on July 7, 2011, it did not select him for the position of Appeals Officer, GS-930-14, as announced in Vacancy Announcement Number APB-0059-903-14-TL.
On November 29, 2010, the Agency announced a vacancy for an Appeals Officer, GS-930-14, to "provide the final administrative opportunity for taxpayers and the [Agency] to resolve tax disputes without litigation." According to the Vacancy Announcement, the position required one year of specialized experience in such work as using accounting or legal knowledge of tax implications, interpreting the law, conducting legal research, applying knowledge of accounting topics, preparing and analyzing financial statements, and applying knowledge of litigation procedures. Complainant applied and was found to be qualified for the position.
A three-member interview panel consisting of two Appeals Team Managers from the Houston office (Panelists 1 and 2) and an Appeals Team Manager from a different office (Panelist 3) interviewed Complainant and three other candidates. The interview panel asked the candidates the same questions. The panel ranked the candidates in the following order: a 47-year-old female (selectee), a 56-year-old female, a 60-year-old female, and Complainant. The panel forwarded their interview notes and the selectee's name to the Appeals Area Director, who reviewed the notes and then forwarded the selectee's name to the Director of Field Operations West (SO). SO chose the selectee for the position.
The selectee, who had worked for the Agency for approximately four years, had not worked in the Appeals Division. Her application indicated that she was a licensed attorney, had a master's degree in accounting, and had worked for companies as an International Tax Manager, a Tax Manager, an International Tax Analyst, and a "Tax Senior."
Complainant worked for the Agency for approximately 38 years, including 20 years as an Appeals Officer and approximately 18 years as an Internal Revenue Agent. He transferred to the Agency's Houston office in March 2010. He is a certified public accountant (CPA).
Complainant told the EEO Investigator that he was much more qualified for the position than was the selectee. He noted that he had 38 years of outstanding service and had worked on all types of cases, from small to large and complex cases, as an Appeals Officer. He argued that the selectee had no experience in the Appeals Division and would require basic appeals-officer training. According to Complainant, the Appeals Area Director told him that the selectee has a "gift for gab" and was a trial attorney and that the selection was based entirely on the interviews. Complainant stated that Panelist 1, who was his first-level supervisor, told him that the selectee was a CPA and a trial attorney and that the selectee's competencies were better than those of the other interviewed candidates.
Complainant asserted that the interview panelists did not give him sufficient time to respond to questions. After he provided an overview of his experience, the panelists told him that they needed to move on to the next question. The panelists "again gave [him] the feeling that [they] needed to move on to the next question" when they asked him about industry-specializations programs. Further, Complainant stated that he previously had discussed retirement possibilities with Panelist 1 and argued that, when the interviewers asked about his career goals, Panelist 1 and Panelist 2 "had large grins on their faces so as to say, 'With your advanced age and retirement possibility, why are you applying?'" In addition, Complainant asserted that the selectee's name was place on the best-qualified list after other candidates declined interviews.
Panelist 1 told the EEO Investigator that she was looking for a candidate with extensive knowledge of corporate and individual income tax law and very good negotiation skills. She stated that Complainant demonstrated a good grasp of appeals principles but spoke at length, talked in general terms, and did not demonstrate "the education or experience of working complex corporate or individual income tax issues." The selectee, on the other hand, described her experience with difficult and complex tax issues. Although the selectee did not have a good grasp of appeals principles, her legal experience gave her a general knowledge of the concepts. In addition, the selectee was a licensed attorney and worked as a Revenue Agent in the Agency's Large Business and International (LBI) Division of Examination.
Panelist 2 stated that he wanted someone "with a clear communication style" and who had leadership skills, LBI accounting experience, and relevant case experience. He stated that Complainant showed "a pleasant demeanor" during the interview but did not provide examples of having worked on technically demanding issues. According to Panelist 2, the selectee "was articulate, detailed, professional, experienced, and knowledgeable."
Panelist 3 told the EEO Investigator that he was looking for a candidate who "could negotiate with high powered tax professionals" such as attorneys and CPAs, who had experience with complex tax issues, who knew appeals processes, and who would be professional in an appeals hearing setting. He stated that Complainant gave rambling responses to questions.
The Appeals Area Director stated that he reviewed the list of best-qualified applicants and forwarded the information to the interview panelists. According to the Area Director, some of the applicants declined interviews, and he asked for the names of replacements. After the panelists conducted interviews, he reviewed their notes and forwarded the selectee's name to SO. SO stated that she selected the selectee based on the recommendation of the interview panel and the Area Director's concurrence. She further stated that she had no direct input into the recommendation. She told the EEO Investigator that she very seldom, if ever, changes a recommendation.
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 EEOC Administrative Judge. Complainant timely requested a hearing. On July 5, 2012, the AJ issued a Notice of Intent to Issue Decision without a Hearing. Complainant and the Agency filed responses to the Notice.1 Subsequently, on September 6, 2012, Complainant filed a Motion for Summary Judgment. The AJ issued a Decision without a Hearing in favor f the Agency on September 13, 2012.
In her decision, the AJ found that a decision without a hearing was appropriate because the parties were notified of their right to conduct discovery and there were no genuine issues of material fact. The AJ further found that Complainant established prima facie cases of age and sex discrimination by showing that he was a member of both protected groups, he was qualified for the position but was not selected, and the Agency chose a significantly younger female applicant for the position. In addition, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its action by stating that the selectee was better qualified for the position because she had a master's degree in taxation and was an attorney. The AJ determined that Complainant failed to show that the articulated reason was a pretext for discrimination. She stated that, although Complainant had many years of experience, he did not have such qualifications as an extensive education in tax law, knowledge of complex tax matters, negotiation skills, and LBI experience. Viewing the facts in the light most favorable to Complainant, the AJ concluded that Complainant failed to show that his qualifications were so clearly superior to the selectee's that a reasonable person would find the Agency's articulated reason to be pretextual.
On September 24, 2012, the Agency issued a final order fully adopting the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that his qualifications were so plainly superior to those of the selectee that the Agency's articulated reason is a pretext for discrimination. He asserts that he has an extensive education in and knowledge of tax law, has worked with complex tax issues, has successfully negotiated with outstanding tax accountants, and has worked on international cases. He argues that the panelists' interview notes confirm that he answered questions concisely and that he performed well in his interview. Complainant also argues that the Agency's preference for a candidate who was an attorney and who had a master's degree has a disparate impact on older workers. Finally, Complainant alleges that the panelists' negative statements about him demonstrate "that there was a collusion (sic) between the three interviewers, the recommending official, and the selecting official."
In response, the Agency argues that there were no genuine issues of material fact and that the AJ properly issued a decision without a hearing. The Agency further argues that it articulated a legitimate, nondiscriminatory reason for choosing the selectee and that Complainant has not shown that the articulated reason was pretextual. The Agency contends that it had discretion to choose among qualified candidates and that there is no evidence that discriminatory bias affected the decision-making process. In addition, the Agency argues that it does not have a policy requiring applicants for GS-14 Appeals Officers to be attorneys or to have master's degrees and that Complainant has failed to establish a prima facie case of disparate impact.2
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The parties were notified of their right to conduct discovery. Complainant received the AJ's Notice of Intent to Issue Decision without a Hearing, and he replied to the Notice. Because there is no genuine issue of material fact, or any need for credibility determinations, a decision without a hearing was appropriate.
Non-Selection for Appeals Officer, GS-930-14, Position
To prevail in a disparate treatment claim, 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 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
In this case, Complainant has established prima facie cases of sex and age discrimination. He is a male over 40, he applied and was qualified for the GS-14 Appeals Officer position, and the Agency chose a substantially younger female applicant for the position.
However, the Agency has articulated a legitimate, nondiscriminatory reason for its action. The panelists believed that the selectee was the best-qualified candidate because she had experience with complex tax issues, was a licensed attorney, had a master's degree in taxation, had LBI accounting experience, and performed well in the interview.
The Agency having met its evidentiary burden, the analysis shifts to whether Complainant has established pretext. In non-selection cases, a complainant can establish pretext by showing that his or her qualifications are "plainly superior" to those of the selectee. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F2d. 1037, 1048 (10th Cir. 1981).
Viewing the evidence in the light most favorable to Complainant, we find that Complainant has failed to present a genuine issue of material fact that the Agency's articulated reason was a pretext for discrimination. Although Complainant asserts that he was more qualified for the position than was the selectee, he has not shown that his qualifications were plainly superior to those of the selectee. We cannot say that the Agency's preference for the selectee's law license and educational credentials over Complainant's experience is a pretext for sex or age discrimination. Further, although Complainant argues that he performed well in the interview, he has not refuted the panelists' statements that he spoke at length, talked in general terms, and gave rambling answers. In fact, he acknowledged that the panelists twice mentioned the need to move on to the next question. Our review of the panelists' interview notes did not disclose a genuine issue of fact regarding Complainant's interview performance.
Similarly, Complainant has not shown that considerations of sex or age more likely motivated the Agency's action. We note, for example, that he has proffered no evidence to support his allegation of collusion among Agency officials.
Finally, to the extent that Complainant has alleged that the Agency's action had an age-based disparate impact, we find that he has offered no evidence to support that allegation. There is no evidence that the Agency had a specific employment practice or policy that disproportionately affected older workers. See Smith v. City of Jackson, 544 U.S. 228 (2005) (individual alleging disparate impact under the ADEA must identify the specific practice responsible for statistical disparities).
CONCLUSION
Viewing the evidence in the light most favorable to Complainant, we find that Complainant has failed to establish the existence of a genuine issue of material fact. We find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the GS-14 Appeals Officer position and that Complainant has not shown the articulated reasons to be a pretext for discrimination. We further find that Complainant has not shown that the Agency had a neutral policy that had an age-based disparate impact. Accordingly, we find that the AJ properly issued a decision without a hearing, and properly found that the Agency did not discriminate against Complainant as alleged. Therefore, 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 order, which implemented the AJ's finding of no discrimination.
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.
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 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
September 25, 2014
Date
1 Complainant filed a Motion for Sanctions and Motion for Default Judgment on the grounds that the Agency did not respond to the AJ's Motion of Intent in a timely manner. The AJ found that the Agency's response was timely and denied Complainant's Motion.
2 The Agency asks the Commission to strike Complainant's appellate brief because Complainant did not serve a copy of the brief upon the Agency. In this case, given that the Agency has had an opportunity to review and to respond to the brief, we have exercised our discretion to consider the arguments that Complainant raised.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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