[Redacted], Charles L. Burgett, 1 Complainant,v.Janet L. Yellen, Secretary, United States Department of Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000489 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles L. Burgett,1 Complainant, v. Janet L. Yellen, Secretary, United States Department of Treasury (Internal Revenue Service), Agency. Appeal No. 2022000489 Agency No. IRS-21-0151-F DECISION On October 26, 2021, 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 September 28, 2021 final agency decision (FAD) 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant, seeking reemployment with the Agency at its facility in Kansas City, Missouri. On February 3, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race/sex (African male) and in reprisal for prior protected EEO activity when: 1 The Commission typically uses pseudonyms in lieu of a complainant's real name when publishing its appellate decisions. In this instance, however, Complainant requested that his real name be used. 2022000489 2 1. On December 1, 2020, he was not selected for the position of Tax Examining Technician, advertised under Vacancy Announcement (VA) No. 2CIN-SBX0178- 0592-05; 2. On December 28, 2020, he was not selected for the position of Contact Representative, advertised under VA No. 20KSC-WIX0317-0962-05; and 3. On January 4, 2021, he was not selected for the position of Tax Examining Technician, advertised under VA No. 20KSC-WIX0761-0592-5-7. In his complaint, Complainant alleged that the Kansas City agency management and the Washington, D.C. Human Capital Office is engaging in a pattern and practice of racial and retaliatory animus and conspiracy toward him. The pertinent record shows that Complainant applied for the Tax Examining position noted in claim 1. He did not receive an interview. He was notified by the Human Resources Office that he was not selected. The Program Manager was the selecting official (SO1) for the day shift position at issue in claim 1. SO1 indicated that he did not know Complainant’s race, nor was he aware of Complainant’s prior EEO activity. The Management and Program Analyst was the selecting official (SO3) for the swing shift position at issue in claim 1. SO3 acknowledged that Complainant did not receive an interview and further stated that no interviews were held for any of the positions. SO3 asserted that they used the “guidance on considering past performance and misconduct of former [Agency] employees in the hiring process.” She explained that the Automated Labor/Employee Relations Tracking System (ALERTS) is a system utilized by the Employment Operations staff to review the prior Agency performance and conduct record of qualified applicants for an external announcement. SO3 advised that they did not rehire Complainant because his name appeared on the ALERTS list. The ALERTS list was included in the record and reflected that the names of 16 candidates were listed, including Complainant’s name, for his prior termination during the probationary period. Investigative File (IF), Exhibit 7. Regarding claim 2, the selecting official (SO2) stated that he selected all of the candidates referred to him, except for those on the ALERTS list. Complainant’s name was listed for his prior termination during his probationary period. IF at 215, Exhibit 16. The record shows that he was Terminated During Probationary/Trial Period, effective May 20, 2012. IF at 93. Exhibit 30 in the record contains the suitability determination. Regarding claim 3, the record showed that Complainant was referred as eligible, but he did not appear on the Best Qualified List. SO2 stated that no interviews were conducted, but he selected all applicants who were referred to him by the Human Resources Office except for those whose names appeared on the ALERTS list, which included Complainant. Thus, the Agency explained that Complainant was not rehired along with 15, 31, and 16 other applicants for the three positions respectively. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 2022000489 3 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed that Complainant established a prima facie case of discrimination and reprisal and found that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was not considered for selection for the three vacancies because he was on the ALERTS List for applicants who had previously been terminated for misconduct, as was Complainant. SO3 affirmed that they followed the Human Resources Office’s selecting official guidance that stated that anyone removed for misconduct was ineligible for rehire unless the selecting official followed the rehire process by obtaining Commissioner approval to rehire an applicant with an Alert. SO3 further explained that this ALERTS check process was completed by the three selecting officials and they chose to not select any applicants that had alert issues. Complainant failed to proffer credible evidence that management’s testimony was unworthy of belief or motivated by discriminatory or retaliatory animus. As a result, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant says “the FAD is predicated on an inadequate investigation, is inconsistent with the facts, and is contrary to EEO law.” He also questions the Agency’s use of the ALERTS system for him and believes that the Agency’s reasons for not rehiring him are pretextual. Accordingly, Complainant requests that the Commission reverse the FAD. 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”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and not based on the facts in the record. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant’s complaint was incomplete or improper. We note that Complainant withdrew his hearing request, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. 2022000489 4 Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination and reprisal. In this case, however, the Agency articulated a legitimate, nondiscriminatory reason for its actions. Complainant was deemed unsuitable for rehire because his name appeared on the Agency’s ALERTS list. Agency officials followed the Human Resources Office’s guidance and decided not to select anyone who appeared on the ALERTS list, including Complainant. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. We find that the record is adequate. The Commission further finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. 2022000489 5 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Accordingly, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022000489 6 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 26, 2023 Date