Janet Taylor, a/k/a Karol K.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181173 (E.E.O.C. Sep. 4, 2019)

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

Janet Taylor, a/k/a
Karol K.,1
Complainant,

v.

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

Appeal No. 0120181173

Agency Nos. IRS130442F, IRS130577F, and IRS140226F

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 19, 2018
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Seasonal Tax Examining Technician, 0592,
GS-4 at the Agency’s Wage and Investment Division, Kansas City Submission Processing,
Internal Revenue Service, with a post of duty in Kansas City, Missouri.

On May 20, 2013, July 26, 2013, and March 5, 2014, Complainant filed three formal EEO
complaints claiming that the Agency discriminated against her and subjected her to a hostile
work environment based on race (African-American), sex (female), and in reprisal for prior
protected EEO activity.

The three formal complaints consisted of the following matters:

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.
0120181173

2
Complaint 1 (Agency No. IRS-13-0442-F): Whether Complainant was subjected to disparate
treatment and harassment based on her race, sex, and in reprisal for prior protected EEO activity
when:

1. on an on-going basis, management allows other employees to use Complainant’s
Social Security Number (“SSN”) to identify her for quality review errors;

2. on an on-going basis, management placed Complainant on a 100% review;

3. on or around April 19, 2013, Complainant’s supervisor informed Complainant’s
work group that she had been contacted by an EEO Investigator in regard to
Complainant’s prior EEO complaint;

4. on or around May 2, 2013, Complainant received an unwarranted verbal
counseling/warning; and

5. on May 31, 2013, management placed Complainant in non-work status.

Complaint 2 (Agency No. IRS-13-0577-F): Whether Complainant was subjected to disparate
treatment and harassment based on her race, sex, and in reprisal for prior protected EEO activity
when, on May 31, 2013, management issued Complainant a Release/Recall Notice containing
incorrect information.

Complaint 3 (Agency No. IRS-14-0226-F): Complainant was subjected to disparate treatment
and harassment based on her race, sex, and in reprisal for prior protected EEO activity when:

1. on January 15, 2014, the Agency failed to provide Complainant with a
Release/Recall Notice relative to her placement in non-work status;

2. on February 10, 2014, the Agency failed to recall Complainant from non-work
status; and

3. on or around February 2, 2014, Complainant was not selected for the position of
Tax Examining Technician under Vacancy Announcement No. 13CS3-
WIX0193- 0592-05-KH.

The three formal complaints were accepted for investigation. After the investigations, the
Agency provided Complainant with copies of the reports of investigation and notices of right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). The AJ remanded Complainant’s appeal to the Agency for a final decision after
Complainant withdrew her initial request for hearing.

On January 19, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
0120181173

3

The instant appeal followed. On appeal, Complainant argues, through her representative, that the
Agency failed to develop an impartial and factual record and requests that the Commission
sanction the Agency. Complainant further argues that the Agency’s reasons for its actions are
pretext to disguise discriminatory and retaliatory motives.

ANALYSIS AND FINDINGS

Preliminary Matter – Investigative Record

We address Complainant’s argument that there are deficiencies in the reports of investigation.
Our review of the record indicates that the Agency submitted to Complainant a copy of the
reports of investigations on May 28, 2014 and June 25, 2014 and provided Complainant the
opportunity to raise any perceived deficiencies in the record within fifteen calendar days of
receipt of the reports. There is no indication that Complainant submitted a written statement
specifying any deficiencies in the record, and our independent review of the record reveals an
adequate investigation. Accordingly, we deny Complainant’s request for sanctions against the
Agency.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See 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).

0120181173

4
Agency management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding Complaint 1, sub-issue 1, Complainant testified that her complete SSN was used to
track her work.

Complainant’s first-level supervisor (“S1”) testified that Agency policy only permits the use of
the last four digits of the SSN to be recorded on documents for quality reviews. S1 explained
that all employees, including Complainant, in the Submission Processing division are required to
undergo quality reviews to determine the employees’ performance. S1 further explained that the
quality reviewers identify the employees by the last four digits of their SSN and do not have
access to the employees’ full SSN.

Regarding Complaint 1, sub-issue 2, S1 stated that Complainant was never placed on 100%
review. Instead, Complainant was placed on a performance improvement plan because
Complainant was not meeting her numbers. S1 clarified that no employee was placed under
100% review because the Receipt and Control Department did not have enough staff to provide a
100% review.

Regarding Complaint 1, sub-issue 3, S1 explained that she accidently sent the email to her team
instead of sending the email to her supervisor. S1 further explained that her supervisor (“S2”)
emailed her requesting that she forward the email she received from the EEO representative at
the same time she was about to send out a group email to her team. S1 stated that she erred when
she attached the EEO email to the email she sent out to her team. S1 further stated that she
attempted to recall the emails when she realized her mistake, but she was not able to recall all of
the emails.

The record includes a copy of the April 19, 2013 email from S1 to her team. In the email, S1
informs S2 that she received a phone call from the EEO Counselor and S1 provides the EEO
Counselor’s phone number.

Regarding Complaint 1, sub-issue 4, S1 stated that Complainant and another coworker (“CW1”)
shared the same desk. S1 explained that she was informed by CW1’s supervisor that
Complainant did not leave her desk in a timely manner to allow CW1, who worked on the day
shift, to begin her shift on time. S1 stated that she counseled Complainant that she must leave at
the end of her shift to allow the desk to be available for the next shift to sign in on time. S1
explained that she did not verbally reprimand CW1 because she was not CW1’s manager.

Regarding Complaint 1, sub-issue 5, Complainant’s third level supervisor (“S3”) testified that
Complainant and five other employees in Complainant’s work group were placed in non-work
status because of a decrease in receipts on the 1040X program. This decrease resulted in
manageable production and inventory levels that could me met within the prescribed timeframes.
S3 further explained that the workload in Submission Processing is seasonal and seasonal
employees are placed into non-work status based on workload.
0120181173

5
S3 clarified that if not enough employees volunteer to be placed into non-work status, seasonal
employees are released with those with the lowest numbers begin placed on non-work status
first.

Regarding Complaint 2, Complainant testified that the Release/Recall Notice she received in
2013 was identical to the Release/Recall Notice she received in 2012. Complainant further
testified that the Notice failed to include any seniority points.

S3 explained that for Release/Recall administration purposes employees are ranked according to
performance and are rated on a scale of 1 (low) to 5 (high) on five Critical Job Elements
(“CJE”). S3 explained that employees are considered fully successfully if they receive a 3 on all
CJEs and employees are entitled to seniority points depending on length of service. S3 stated
that Complainant was informed by S1 that she would be placed in non-work status and
Complainant requested a copy of the notice which S3 clarified is system generated. S3 further
stated that Complainant’s ratings were based on her most recent evaluation, but Complainant’s
annual evaluation was not prepared because she was failing four of her CJEs. As a result, S3
explained that an ad hoc appraisal was prepared for Release/Recall purposes.

S2 stated that the purpose of the Release/Recall notice is to establish a way to decrease or
increase staff in response to the business needs of the organization, and he updated the list that
was used on May 31, 2013. S2 explained that Complainant’s CJE ratings of 2, 1, 1, 1, and 1
were drawn from Complainant’s most recent appraisal and an ad hoc appraisal was completed
“for the purpose of completing the release recall list.” S2 further explained that the computer
determined the actual number of seniority points assigned and S2 confirmed that Complainant’s
number of seniority points was correct because she had not completed two years of service.

S1 stated that Complainant was not fully successful with a CJE rating of 2, 1, 1, 1, and 1. S1
further stated that she had no Return to Duty employee who had a CJE rating as low as
Complainant’s rating.

Regarding Complaint 3, sub-issue 1, S3 explained that he informed the employees, during a
January 2, 2014 refresher training, that they would be placed in non-work status if the workload
was not available. S3 further explained that his tour of duty ended at 5:00 pm, and Complainant
emailed him after he had left the office at 9:39 pm requesting copy of the Release/Recall Notice.
S3 clarified that he was unaware of any employee in Complainant’s division who received a
Notice, and S3 explained that he was unaware of any negative impact Complainant would have
incurred from not receiving the Notice.

Regarding Complaint 3, sub-issue 2, S3 testified that Complainant emailed him on February 18,
2014 stating that the EEO Counselor informed her EEO representative that she was supposed to
be called back to work on February 10, 2014. S3 explained that “no one in the 1040X
Department was recalled to duty on February 10, 2014.” S3 further explained that Complainant
returned to duty on March 4, 2014.

0120181173

6
A copy of Complainant’s SF-50 indicates that she was placed in pay status effective February 24,
2014.

Regarding Complaint 3, sub-issue 3, the Selecting Official stated that Complainant was not
initially selected because she “did not fall within the pool of candidates identified as having
veteran’s preference for hiring.” The Selecting Official further explained that alternative
selections were made after receiving declinations and those selections were based on, among
other factors, prior work history and evidence of fully successful performance in prior IRS
positions with similar duties and responsibilities. The Selecting Official noted that Complainant
“had no experience in the Unpostables function and ha[d] no record of experience in a similar
function” and Complainant had a less than fully successful rating with her current position at the
Agency.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, and in reprisal for prior protected EEO activity.

Harassment/Hostile Work Environment

To establish a claim of discriminatory environment harassment, Complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of her protected basis – in this case, her race, sex, and reprisal for
prior protected EEO activity. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.

Here, as discussed above, Complainant simply has provided inadequate evidence to support her
claim that her treatment was the result of her race, sex, and in reprisal for prior protected EEO
activity. We conclude that a case of harassment is precluded based on our finding that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21,
2000).

0120181173

7
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
0120181173

8
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

September 4, 2019
Date