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

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2021003278 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shelby R.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021003278 Agency No. IRS-20-0674-F DECISION On May 18, 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 May 11, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment for the position of Internal Revenue Agent, GS-0512-05, at the Agency’s Tax Exempt/Government Entities (TEGE) Division in Cincinnati, Ohio. Though Complainant was selected for the position, the Agency ultimately rescinded the offer of employment on September 15, 2020, after finding Complainant to be unsuitable due to his recent criminal conviction for discharging a firearm in the presence of his family and history of unrehabilitated alcoholism. On October 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (bipolar disorder with alcohol dependence) when, on September 15, 2020, the Agency rescinded his tentative offer for the position of 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published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. 2021003278 2 Internal Revenue Agent under Vacancy Announcement Number 20STR-HCX10802530-0512- 5T9, based on a suitability determination. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination, as the record showed that Personnel Security had legitimate, nondiscriminatory reasons for finding Complainant to be unsuitable based on the recency and seriousness of underlying firearm criminal conviction. The Agency ultimately found Complainant’s attempt to associate the firearm conviction with his history of alcoholism to be unpersuasive and emphasized that EEOC regulation at 29 C.F.R. § 1630.16(b)(4) allowed agencies to hold employees with alcoholism to the same qualification standards and codes of conduct as other employees. The instant appeal followed. CONTENTIONS ON APPEAL Complainant raises two points on appeal. First, he argues that the Agency, in issuing the final decision, violated 28 C.F.R. § 35.108(e)(2) by failing to give broad construction to his diagnoses which include not only alcohol dependence but also bipolar disorder. Second, Complainant argues that the Agency violated 29 C.F.R. § 1630.2(r) when the Personnel Security Specialist recommended an adverse suitable determination based on her subjective belief that Complainant’s firearm discharge conviction and history of alcoholism posed a risk to Agency employees. Complainant asserts that this determination is contrary to the Schedule A letter from his Vocational Rehabilitation Counselor who found him fit to work despite his medical conditions. The Agency opposes the appeal and requests that the Commission affirm its final decision. In so arguing, the Agency vehemently maintains that the Senior Personnel Security Specialist who rendered the final suitability determination did not consider Complainant’s medical conditions, but rather focused on the seriousness and recency of Complainant’s criminal activity and his subsequent criminal conviction. The Agency contends that since the adverse suitability determination was not based on Complainant’s medical conditions, it was not material whether the Agency considered Complainant’s bipolar disorder in issuing the final suitability determination decision. 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 2021003278 3 “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”). ANALYSIS AND FINDINGS To prevail on a claim of disparate treatment, 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. Co. 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. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is 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. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, we find that the Agency articulated legitimate, nondiscriminatory reasons for rescinding his offer of employment. As discussed above, the Agency has repeatedly maintained that it withdrew Complainant’s offer of employment because Personnel Security found him to be unsuitable for employment because of the recency and seriousness of his criminal conviction for discharging a firearm. In arguing pretext, Complainant asserted that the Agency failed to consider the Schedule A letter that he provided and did not give broad construction to his diagnoses. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and 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). Given the facts in this case, we conclude that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination. In reaching this conclusion, we are mindful of Complainant’s contention that the Agency erred in its direct threat analysis and did not properly consider the extent of his disabilities. While we acknowledge that the recommended suitability determination appears to find Complainant to be a direct threat to Agency operation, we note that the final suitability determination was not based on Complainant’s disabilities but rather the recency and seriousness of his criminal conviction. 2021003278 4 As the Agency did not ultimately raise “direct threat” as an affirmative defense, we find Complainant’s contentions regarding this issue to be unpersuasive. Based on the foregoing, we conclude that Complainant cannot prevail on his complaint. 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. 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). 2021003278 5 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). 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 August 11, 2022 Date