[Redacted], Ivelisse S., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2020004526 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivelisse S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020004526 Agency No. IRS-20-0099-F DECISION On August 8, 2020, 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 July 27, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Supervisory Contact Representative, 0962, IR-07, at the Agency’s Wage & Investment Service Centers, Fresno Accounts Management AM Operations, in Seattle, Washington. Her first-line supervisor was Operations Manager, and her second-line supervisor was Department Manager. Complainant submits she had previously filed an EEO complaint in 2016 against Operations Manager and that another relevant individual-Director, Joint Operations Center (Director)-was named in that complaint. 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. 2020004526 2 On December 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (physical), age (YOB: 1964), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: she was not selected for the position of Supervisory Contact Representative under Vacancy Announcement Number 19EMB- WM0523-0962-07-MM on or about November 7, 2019. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant applied, as an internal candidate, for the above-cited Vacancy Announcement Number. This was a permanent position, and there were two vacancies. Complainant was rated one of the Best Qualified applicants. Report of Investigation (ROI) at 328. Nine of these applicants, including Complainant, were interviewed telephonically on October 21, 2019. Id. at 210-11, 256. Complainant was then notified via email on November 8, 2019, that she was not selected for either vacancy. Id. at 138. In terms of the interview process, Procedure & Administration Chief (Chief), the selecting official for this position, received the list of best qualified applicants and put together an interview team to interview them. Id. at 189. The members of the interviewing team were: Department Manager 1, Department Manager 2, and Department Manager 3, with Department Manager 1 acting as the chair of the interviewing panel. Id. On October 17, 2019, Operations Manager sent the panelists the Best Qualified list and a list of six questions to ask all candidates, which was later updated to include a seventh question. Id. at 317-21; 322-24. The final questions were: 1. Tell us about yourself? 2. How do you resolve conflict? 3. How would you deal with an underperforming employee? 4. What do you see as the top business priorities and challenges for Accounts Management? As a Manager how would you help achieve those priorities? 5. What is your leadership style and what have you done to develop yourself as a leader? 6. Can you work swing shift either 10:30 am to 7:00 pm or 11:00 am to 7:30 pm? 7. Do you have any questions for us? Id. at 324. On October 21, 2019, the date of the interviews, Department Managers 1 and 2 were on-site in Fresno, while Department Manager 3 was remote in Portland. Id. at 211-12, 234, 256. 2020004526 3 The interviewers confirmed they were all present for Complainant’s interview and took turns asking questions. Id. The record indicates that all candidates were asked the same questions. Id. at 210, 240, 256-57, 647-80. Complainant averred that Department Manager 1 was not a part of her interview panel, only Department Manager 2 asked her questions, and she was not asked all parts of all the questions. Id. at 5; 86-89. In assessing the candidates, the interviewers briefly discussed the candidates. Id. at 212, 235-36, 257. Department Manager 1 stated they discussed who had a strong interview and gave the best answers to the questions asked. Id. at 213. Department Manager 2 reported that they had discussed the candidates as a group to determine who displayed the most experience and was best suited for the job based on answers provided during the interview. Id. at 236. Department Manager 3 said they only discussed their top two candidates and did not discuss Complainant. Id. at 255, 257. Department Manager 3 added that the panel came up with the strongest two candidates, deciding unanimously on Selectee 1 and by a majority on Selectee 2. Id. Chief made his selections based on their recommendations. Id. at 189. Department Manager 1 said Complainant was not a selectee because there were two other applicants who gave a better interview than she did. Id. at 214; see also id. at 226-27. Specifically, he said the Selectees’ answers to the questions were stronger. Id. at 222. Department Manager 2 stated that the Selectees provided the best examples to the questions posed to them. Id. at 247. Department Manager 3 noted that she did not pick Complainant as one of the top two candidates because her response to one question did not speak to the second part of that question and her response to another question was not appropriate to the context. Id. at 259. On the other hand, the Selectees’ “responses were more complete than the Complainant’s and the questions asked of the panel were specific to and relevant for this process and interaction,” according to Department Manager 3. Id. at 261. All interviewers affirmed they were not coached to not select Complainant. Id. at 215, 239, 259. Complainant asserted that there was a conflict of interest on the interview panel because Chief- who appointed the interview committee and passed on their recommendation-reported to Director, and Department Manager 3 reported to Operations Manager, who were both named in her prior EEO complaint. Id. at 79, 161. Complainant also asserted that, in the interview process, Department Manager 2 said, in an angry tone, “I wouldn’t hire anyone that is not here every day.” Id. at 80. Department Manager 2 denied making the statement. Id. at 237. Department Managers 1 and 3 were not aware of and did not recall, respectively, that comment by Department Manger 2. Id. at 214, 258. Chief said that he was aware of Complainant’s age, race, color, sex, and her prior EEO activity since 2019. Id. at 186-88. He was not aware of her disability. Id. at 188. Department Managers 1 and 3 were unaware of Complainant’s age, race, color, prior EEO activity, or disability, but Department Manager 1 was aware, and Department Manager 3 believed that Complainant was female. Id. at 206-08, 251-53. Department Manager 2 stated he was unaware of all of Complainant’s protected bases. Id. at 229-31. 2020004526 4 Selectee 1 (YOB: 1976, male, white - color, disability and EEO activity unknown) and Selectee 2 (YOB: 1971, female, white - color, disability and EEO activity unknown) have the same job title as Complainant. Id. at 82-83, 271, 684, 689. Complainant maintained that Selectee 1 and Selectee 2 were not permanent leads like she was, even though they had the same job title, and that they had less tenure than she did. Id. at 83, 143. She attributed their selection to a discriminatory hiring process. Id. at 143. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, her pretext arguments are not worthy of credence as the Agency explained that there were no irregularities with the interview process; she failed to show bias motivated her non-selection; and she did not establish that she was the plainly superior candidate. The FAD also finds that Complainant’s reprisal claim failed because she did not establish material adversity and motive. CONTENTIONS ON APPEAL On appeal, Complainant reiterates her arguments about being treated differently in the interview process. She argues that Department Manager 2’s alleged statement about not hiring someone who was not present every day directly correlated to her disability. She also submits that she was denied the position because of attendance issues related to her disability and her lack of response to an interview question she was not asked. The Agency argues that Complainant submitted no evidence to support her contentions that she was not asked the same interview questions the other candidates were asked. It contends that she gave different versions of the comment allegedly made by Department Manager 2, but even if he said it as Complainant remembers it, it is too vague and innocuous to be evidence of discrimination. It further maintains that there is a legitimate, nondiscriminatory reason for her non-selection: she did not perform as well on the interview as the two selectees did. As a result, the FAD should be affirmed. ANALYSIS AND FINDINGS 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 Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review 2020004526 5 “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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n.13; 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. Tex. Dep’t of Cmty. Affs. 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. St. Mary’s Honor Ctr. 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 its actions, 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. U.S. Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination on her protected bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, she did not perform as well in the interview as the Selectees. Department Manager 1 said two other applicants gave a better interview and provided stronger answers to interview questions that Complainant did. Department Manager 2 likewise averred that the Selectees’ answers to the interview questions were stronger. Department Manager 3 said that Complainant had not answered all of one question and had responded inappropriately to another. She added that the Selectees’ “responses were more complete than the Complainant’s and the questions [they] asked of the panel were specific to and relevant for this process and interaction.” As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. In arguing pretext, Complainant contended that only two individuals were on her interview panel; only Department Manager 2 asked her questions; she was not asked the entire part of the question in the two-part questions; and a discriminatory comment was made by Department Manger 2. 2020004526 6 She also submitted that there was a conflict of interest because Chief and Department Manager 3 reported to management who were named in her prior EE0 complaint. Lastly, Complainant maintained that, while she and the Selectees held the same job position, only she was a permanent lead. She also contended that she had more experience than they did. Regarding the integrity of the interview process, the members of the interview panel and their notes establish that all interviewees were asked the same questions. Department Managers 1, 2, and 3 affirmed that they were all present for her interview and that they all asked Complainant all seven questions. Furthermore, they deny Complainant’s contention that Department Manager 2 made the allegedly discriminatory comment attributed to him by Complainant. As for the alleged conflict of interest resulting from Chief and Department Manager 3 being subordinates of parties Complainant named in a prior EEO complaint, Chief did not select the finalists; Department Manager 3 averred that she was not coached to not select Complainant; and the link between the individuals named in the prior EEO complaint and the interview panel is too attenuated to raise an inference of bias. Regarding Complainant’s argument that she was the better candidate, the record does not support that she was plainly superior to the Selectees, whose application materials support the reasons given by the Panelists for their recommendations. For example, Selectee 1 was rated “Exceeds Fully Successful” on the performance appraisal submitted with his application. He also graduated cum laude from college. Selectee 2 was rated “Outstanding” on the performance appraisal she submitted with her application. In the written comments, her evaluator indicates that Selectee 2 was instrumental in her team’s success. Furthermore, the Agency does not dispute that Complainant was among the best qualified. It submits that she did not perform as well as the Selectees in the interview. Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). It is well established that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Burdine, 450 U.S. at 259. Furthermore, the Commission has long held that a person’s length of experience does not necessarily mean she is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). Ultimately, 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. Shapiro, supra. In sum, Complainant has not shown that the Agency's reasons are unworthy of credence or that discriminatory motivation more likely motivated the Agency's actions. Complainant thus failed to demonstrate that the management officials in this matter harbored discriminatory animus or that the legitimate, nondiscriminatory reasons provided were pretext for unlawful discrimination. 2020004526 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Final Agency 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. 2020004526 8 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 March 9, 2022 Date