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

Equal Employment Opportunity CommissionJul 19, 2017
0120150454 (E.E.O.C. Jul. 19, 2017)

0120150454

07-19-2017

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


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Nakesha T.,1

Complainant,

v.

Steven T. Mnuchin,

Secretary,

Department of the Treasury

(Internal Revenue Service),

Agency.

Appeal No. 0120150454

Hearing No. 410-2014-00174X

Agency No. IRS-12-0781-F

DECISION

On December 6, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 6, 2014, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUE PRESENTED

The issue presented before the Commission is whether Complainant established, by preponderant evidence, discrimination based on race (African-American), sex (female), age (40), and reprisal (prior EEO activity).

BACKGROUND

During the period at issue, Complainant was employed as a Tax Examiner, GS-0592-05 at the Agency's Compliance Services, Collections Operations, IRS Service Center located in Chamblee, Georgia. On December 26, 2012, she filed an EEO complaint alleging discrimination because of her membership in the above-identified bases when:

1. On September 10, 2012, she was issued a negative workload management AMS memorandum by Agency management;

2. On September 14, 2012, her request for nine hours of annual leave was denied and she was charged absent without leave (AWOL) instead;

3. On October 3, 2012, she was issued a "failure to follow a directive" letter by Agency management;

4. On December 3, 2012, she was reprimanded for not attending Empowerment Day;

5. On December 21, 2012, she was accused of not completing her F3081 timekeeping form in a timely manner;

6. On March 19, 2013, she received a lowered performance appraisal; and

7. On July 17, 2013, she received a negative memorandum from management regarding her utilization of time/workload management.2

The Agency accepted all issues for investigation. After of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate decision from the Agency based on the ROI. Complainant requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ.

The AJ assigned to the case held a hearing on August 19, 2014. On September 25, 2014, he issued a decision in which he found Complainant did not establish discrimination as alleged. The Agency subsequently issued a final order implementing fully the AJ's finding. Complainant thereafter filed this appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ engaged in unethical conduct and violated her right to a fair judicial process by limiting the number of witnesses she requested to testify on her behalf. She further contends that the AJ erred by not allowing her to present evidence of discrimination earlier than 2012, and that the pre-2012 evidence would have established a pattern of harassment and misconduct by Agency management. The Agency did not submit contentions on appeal.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Contentions on Appeal

Once Complainant requested a hearing, the AJ appointed to the case assumed full responsibility for the adjudication of the complaint, including overseeing the development of the record. 29 C.F.R. � 1614.109(a). Upon review, the Commission finds no evidence that the AJ's oversight of the matter failed to render a complete and impartial record. The Commission further finds that there is no evidence indicating that the AJ abused his discretion by not allowing some of Complainant's witnesses to provide testimony and by limiting the evidentiary period to those events that occurred in 2012 and beyond. AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109.

Race, Sex, Age, and Reprisal Discrimination

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will presume, without so finding, that Complainant has established prima facie cases of race, sex, age, and reprisal discrimination.

We now look to see whether the Agency has stated legitimate nondiscriminatory reasons. As to the first allegation, the Agency stated that Complainant was issued a negative workload management AMS memorandum on September 10, 2012, because she failed to complete an assignment in a timely manner. Regarding the second allegation, the Agency stated that Complainant's administrative leave request was denied because Complainant requested the leave so she could work on a Merit Systems Protection Board (MSPB) appeal, and IRS employees are not entitled to administrative leave for MSPB appeals. The Agency clarified that once Complainant's administrative leave request was denied, she submitted a last-minute request for annual leave, which was also denied because employees are required to schedule leave in advance absent unforeseen circumstances. The Agency further clarified that there were no unforeseen circumstances linked to Complainant's annual leave request so when Complainant did not report to work on September 10, 2012, at eight o'clock, she was charged AWOL.

Concerning the third allegation, the Agency stated that Complainant was issued a "failure to follow a directive" letter on October 3, 2012, because she did not complete or even begin working on an assignment that was due on October 2, 2012. Regarding the fourth allegation, the Agency stated that Empowerment Day, a meeting during which management attempts to inspire employees to reach their goals for the upcoming year, is mandatory for all day-shift employees, such as Complainant. According to the Agency, Complainant did not attend this mandatory meeting, therefore she was reprimanded. We note that Complainant admitted she did not attend the meeting.

As to the fifth allegation, the Agency stated that, on December 21, 2012, Complainant was accused of not completing her F3081 timekeeping form in a timely manner because she did not update her timekeeping form at the end of each day as she was instructed. Concerning the sixth allegation, the record reflects that in March 2013, Complainant was rated "exceeds" in each of the five major categories, however, she was rated as "meets expectations" in those subcategories relating to efficiency and timeliness. The Agency stated that Complainant's subcategory ratings were manifested by her problem areas, namely, her inability to complete assignments on time. The AJ noted, and the record reflects, that Complainant admitted to not being one of the fastest employees in her unit.

Regarding the last allegation, the Agency stated that Complainant was issued a negative memorandum from management relating to time/workload management because she needed to improve in these areas.

The AJ found that the reasons and supporting documentation put forth by the Agency for its actions were legitimate and nondiscriminatory. The AJ further found management's testimony to be credible as to why it took the actions alleged to be discriminatory in the underlying complaint. Upon review, the Commission finds that here is substantial evidence in the record in support of Complainant.

Complainant must now present evidence showing that the Agency's stated reasons are pretexts for discrimination based on her race, sex, age, and prior EEO activity. To meet this burden of proof, we find that Complainant presented no persuasive evidence, other than her own beliefs, to demonstrate that her membership in the named protected classes were factors regarding the actions taken by the Agency she believes to be discriminatory. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant did not meet her burden of showing that the Agency's stated reasons were pretextual.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's findings of fact are supported by substantial evidence. We further find that Complainant did not establish discrimination by preponderant evidence based on race, sex, age, or reprisal. Accordingly, the Agency's final order is AFFIRMED.

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.

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

___7/19/17_______________

Date

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.

2 This allegation was not included in the original complaint; instead it was later added as an amendment.

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0120150454