U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geraldine G.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency. Appeal No. 2022002111 Agency No. IRSCC-21-0583-F DECISION On March 10, 2022, 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 February 28, 2022 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 worked as a Senior Counsel, GS- 0905-15, in the Office of Chief Counsel at the Agency’s Large Business and International Unit in San Jose, California. On August 3, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Asian Indian), sex (female), color (Brown), age (61), and in reprisal for prior protected EEO activity when: 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. 2022002111 2 1. from August 2019 to present, during an ongoing large, complex tax case at trial, unlike her co-workers, she has not been assigned leadership roles on various parts of the case; 2. on or about February 28, 2020, her supervisor attempted to reassign her task of cross examining a witness to a male coworker, stating that “he knows more;” and 3. on or about March 24, 2021, without proper notice or rationale, her access to SharePoint was rescinded. Complainant’s allegations arose out of Agency investigations into the tax returns of a large corporation, which led into an enforcement to assess taxes, and which involved attorneys from the Department of Justice. The enforcement action then led to a trial in Tax Court. The record clearly reflects that the Agency’s efforts to collect taxes from this corporation required intensive resources, including investigators, paralegals, and attorneys. The record further reflects exhaustive testimony from attorneys assigned to the case that described the Agency’s approach to litigation and structure of the trial team insofar as it pertained to how the attorneys were assigned to various aspects of the case. When the matter transitioned into trial efforts, the Agency assigned a special trial team which included the Agency’s National Strategic Litigation Counsel. Complainant was heavily involved in the Agency’s investigation and remained involved as the Agency transitioned to its litigation efforts. When the special trial team took over the case, Complainant sought “leadership” opportunities within the litigation. Specifically, Complainant wanted to be assigned to work with expert witnesses and to be assigned to take depositions. The special trial team had two lead attorneys. One of the lead attorneys testified that they did not regard assignments or positions within the trial team as “leadership” versus “non-leadership” roles. Rather, the work necessary to conduct the enforcement action was varied, which, in the lead attorney’s opinion, “offer ample opportunities for trial team members to lead…ultimately, the lead STA makes assignments based on what the STA determines is in the best interests of the case, subject to managerial oversight and input.” The other lead attorney testified that Complainant’s participation in the trial carried some risks because Complainant had been permitted by the corporation to view potentially privileged documents in a routine process to determine whether the corporation’s claim of privilege was proper. The lead attorney explained that the corporation’s trial attorneys were taking aggressive, and sometimes, unpredictable positions in the action, which required the Agency to carefully manage its risks even if Complainant’s inclusion was ultimately proper. The attorney also noted that Complainant was permitted to accompany another attorney to a deposition but was not supposed to ask questions. Complainant sought to ask questions and was allowed after some discussion with the corporation’s attorney to ask these questions. When the Agency moved to take more depositions, the corporation pointed to Complainant’s questions as improper and utilized it in their argument against the Agency’s motion. The Judge then denied the Agency’s motion in part. The lead attorney concluded that Complainant’s involvement in the deposition put the Agency’s discovery efforts at risk. 2022002111 3 Complainant maintained that her experience as an attorney, along with her “encyclopedic” knowledge of the case and associated materials meant that she should have conducted depositions and worked with multiple expert witnesses. Both lead attorneys agreed that Complainant was and is an excellent attorney and did a fantastic job in developing the case. The attorneys specifically pointed to Complainant’s efforts to obtain stipulations of fact and documents from the corporation that greatly reduced the disputed issues. One of the attorneys suggested that the stipulations Complainant was able to secure may have been the largest set of stipulations in the Agency’s history. The attorneys also testified that they tried to provide Complainant with assignments that took the greatest advantage of her knowledge of the case. With respect to Claim (2), Complainant testified that she was set to cross-examine a witness. On February 28, 2021, three days prior to the cross-examination, one of the lead attorneys suggested that a male attorney take over the cross-examination. Complainant said she was well-prepared and ready to go. Complainant testified that she does not know why the lead attorney second-guessed her ability to conduct the examination. The lead attorney testified that he discussed the cross-examination with Complainant and anticipated that the corporation may pursue a certain line of questioning. Complainant did not seem to anticipate this line of questioning, so the lead attorney suggested that another attorney was more knowledgeable about topics within this line and offered to have him assume the cross- examination. The lead attorney “offered her an ‘out’ in case she had reservations about her ability to be ready.” Ultimately, Complainant took the cross-examination. In Claim (3), Complainant clarified that her access to the relevant SharePoint pages had been downgraded from “owner” to “reader.” The record makes clear that the effect of this change meant that Complainant could no longer post, comment, or edit SharePoint items. One of the lead attorneys acknowledged that he was cleaning up the list of people who no longer required access to SharePoint, and conceded that the clean-up process was “a job for which [he was] apparently not technically capable or qualified to do.” The attorney explained that his goal “was to make sure that people who did not need access to the site were removed and that the people who needed access all had the same access.” In doing so, the lead attorney recalled adjusting various statuses between “owner,” “contributor,” and “reader.” In doing so, the lead attorney inadvertently changed Complainant’s status to that of “reader.” After learning of the error from Complainant, the lead attorney discussed the matter with a paralegal who was more technically proficient in SharePoint and restored Complainant’s status, along with three other employees. Complainant expressed skepticism that the lead attorney acted diligently to resolve the problem because she believed her access was removed on or about March 24, 2021, and the lead attorney had notified the team the day prior that he only had time to attend to extremely urgent matters. 2022002111 4 The lead attorney did not recall when he made the changes, but noted that he was not in the office at the time of Complainant’s discovery because his family was dealing with COVID-19. The lead attorney maintained that Complainant’s change in status was a simple mistake. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL In her statement on appeal, Complainant maintains that she was being excluded from lead assignments throughout the relevant litigation and that she was discriminatorily excluded from SharePoint. Complainant frequently asserts that the lead trial attorneys are lying and misstating the facts. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Disparate Treatment 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2022002111 5 Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As more fully detailed above, all of Complainant’s allegations deal with her efforts to assume a significant role in the Agency’s attempts to enforce taxes on a particular corporation. In Claim (1), the record reflects that the enforcement attempts required the use of a specialized litigation team and drew in multiple resources from multiple directions. The testimony by the two lead attorneys reflected a multi-faceted team structure in which attorneys were encouraged to assist one another and certain assignments sometimes led to more assignments while others fizzled out. For instance, one lead attorney testified that being assigned a witness or deposition did not necessarily guarantee that witness or deponent would appear at trial. Both lead attorneys testified assignments were given out in a way that would maximize the team’s resources and lead to a positive trial outcome. As to Claim (2), the lead attorney testified that he was concerned about a potential line of questioning with respect to Complainant’s witness and suggested that another attorney take over only to give Complainant an out. When Complainant refused, the lead attorney did not revisit the matter and Complainant proceeded to successfully cross-examined the witness. In Claim (3), the relevant lead attorney testified that Complainant’s access was mistakenly changed, and it was restored, along with three other employees’ access, as soon as feasible. 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). 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. In this case, we recognize Complainant’s dissatisfaction with her role in the Agency’s litigation efforts. However, Complainant does not provide any evidence that demonstrates, by a preponderance of the evidence, that she was subjected to discrimination or reprisal. Furthermore, to the extent Complainant alleges that the Agency subjected her to a hostile work environment, her claim is precluded by our conclusion 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 Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION 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 decision. 2022002111 6 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. 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). 2022002111 7 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 31, 2023 Date
