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

Equal Employment Opportunity Commission

Sep 15, 2017

0120151748 (E.E.O.C. Sep. 15, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Terrence F.,
Complainant,

v.

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

Appeal No. 0120151748

Hearing Nos. 410-2011-00260X
410-2012-00214X
410-2012-00395X

Agency Nos. IRS-10-0386-F
IRS-11-0257-F
IRS-11-0469-F

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 6,
2014, final decision concerning his equal employment opportunity (EEO) complaints 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. Our review is de novo. 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 Contact
Representative, GS-952-8, at the Agency’s offices in Chamblee, Georgia.

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.
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On July 12, 2010, Complainant filed an EEO complaint (Agency No. IRS-10-0386-F) (complaint
#1) wherein he claimed that the Agency discriminated against him on the bases of his sex (male)
and in reprisal for prior protected EEO activity under Title VII when:

1. In or around October 2009, he was not selected for the position of Leadership
Development Program (LDP), announced under Vacancy Announcement Number 41-
72-A21009M.

2. In or about March 26, 2010, he was not selected for the position of Lead Customer
Service Representative, announced under Vacancy Announcement Number 41-72-
10210PM.

3. Beginning February 23, 2010, Complainant was subjected to harassment and
disparate treatment based on his race (African-American) and sex (male) when the
following alleged events occurred:

(a) On February 23, 2010, Complainant’s Supervisor forced him to sign a
memorandum pertaining to a disciplinary action, under duress, and proceeded to
follow him to the restroom in order to intimidate him.

(b) On March 15, 2010, Complainant’s Manager used inappropriate physical
intimidation when he attempted to take his government-issued identification
badge from him and forced him to leave the building.

(c) Complainant was not allowed to perform other duties, including the duties of
Acting Customer Service Lead.

On March 18, 2011, Complainant filed an EEO complaint (Agency No. IRS-11-0257-F)
(complaint #2) wherein he claimed that the Agency discriminated against him on November 10,
2010, on the bases of his sex (male) and in reprisal for prior EEO activity when he was not
selected for the position of Supervisory Contact Representative (Leadership Development
Program) IR-962-09, announced under Vacancy Announcement Number 41-72-A 1191 OMC.

On July 22, 2011, Complainant filed an EEO complaint (Agency No. IRS-11-0469-F) (complaint
#3) wherein he claimed that the Agency discriminated against him in reprisal for his prior EEO
activity when he was not selected for the following positions:

(a) Lead Contact Representative, GS-962-09, announced under Vacancy
Announcement Number 41-72-A20111TG.

(b) Lead Contact Representative, GS-962-09, announced under Vacancy
Announcement Number 41-72-A10311 PM.

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At the conclusion of the investigation of each of Complainant’s complaints 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). Complainant
requested a hearing in each complaint. The AJ assigned to Complainant’s hearing requests
dismissed the requests on the grounds that Complainant failed to prosecute his case. The AJ
remanded the complaints to the Agency for further processing, and the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

In its final agency decision, the Agency found that Complainant was among fifteen candidates
certified to the promotion certificate for the selection at issue in claim (1) of complaint #1. Four
candidates were selected (three female, one male) for the position by the Department Manager
based on the recommendations of her department managers. According to the selecting official,
prior experience and managerial potential were important factors for the position. Complainant’s
Department Manager from 2006-2008 stated that she recommended two female candidates for
selection who had previously acted as managers in her department. This Department Manager
stated that Complainant had not acted as a manager and therefore had not demonstrated that he
had the skills for the position. Complainant’s second-level supervisor stated that other managers
believed Complainant was not ready for a management development position.

The Agency determined that Complainant failed to initiate contact with an EEO Counselor in a
timely manner and dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency
stated that although Complainant learned of his nonselection by November 12, 2009, he did not
initiate contact with an EEO Counselor until April 2, 2010, after the expiration of the 45-day
limitation period.

As for claim (2) in complaint #1, nineteen selections were made for the position of Lead
Customer Service Representative, three male, sixteen female. The selecting official for this
position stated that although Complainant had the skills to train others, he did not effectively
demonstrate the behavior they wanted others to emulate. The selecting official noted that
Complainant had been suspended on two occasions for behavior-related reasons. The selecting
official explained that Complainant had a reputation as a “challenge” to work with and that he
tended to do things his way even though a different directive was issued. Another management
official stated generally when filling lead or LDP vacancies, the selecting officials looked for
models of excellence and acting lead or manager experience. Complainant claimed that the
selecting official did not select him because he had previously filed a complaint against her in
July 2009. The Agency determined that it articulated a legitimate, nondiscriminatory reason for
its selection decision and that Complainant failed to establish that the reason was pretext
intended to hide discriminatory motivation.

With respect to claim 3(a), the Agency found that Complainant’s affidavit failed to describe the
incidents at issue. The second-level supervisor asserted that he delivered to and asked
Complainant to sign a memorandum that was a suspension, but did not force him to sign the
memorandum. According to the second-level supervisor, Complainant said to him “you’re going
to follow me in the bathroom are you,” but he returned to his office.
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As to claim 3(b), the second-level supervisor informed Complainant that his suspension would
begin that day. Complainant maintained that he had appealed the suspension. Complainant
claimed that the second-level supervisor tried to use physical intimidation to force him to leave
the building and made an inappropriate move by attempting to physically take his government-
issued identification badge. The second-level supervisor asserted that he did not expect
Complainant to appear at work on March 15, 2010, and that he ordered Complainant to leave the
building and surrender his badge. The second-level supervisor stated that he informed
Complainant that he would call security to remove him from the building.

The Agency determined that Complainant was suspended and his supervisor took action to
effectuate that suspension. The Agency stated that the events at issue in claim 3(a) occurred in
the regular course of business and that Complainant failed to produce persuasive evidence that
the matters at issue in claim 3(b) occurred as he described. The Agency determined that
Complainant’s signature on a memorandum and his exit from the work facility did not constitute
a present harm to a term or condition of employment. The Agency further determined that these
events were not so severe or pervasive as to constitute a hostile work environment.

With respect to claim 3(c), Complainant claimed that his first-level supervisor from October
2009 – June 2010, did not allow him to perform additional work duties that would enable him to
develop as a Contact Representative. The Agency stated that the first-level supervisor
acknowledged that Complainant informed her that he wanted to perform Acting Customer
Service Lead duties, but did not follow up with her after she told him to come and see her. The
Agency determined that Complainant did not show that this explanation was pretextual.

In terms of complaint #2, Complainant was ranked ninth among thirteen candidates for the GS-9
position. The selecting official stated that she did not select Complainant for the Supervisory
Contact Representative position because he needed more Lead Customer Service Representative
experience and was not ready for a managerial assignment. The selecting official maintained
that each selectee possessed prior acting lead or lead experience. The three candidates selected
from the GS-9 certificate were female. The Agency stated that two of these three selectees were
rated “ready now” in three out of four categories. Complainant was rated “ready now” in two
evaluative criteria (customer satisfaction, business results) and “ready in 3-5 years” in leadership
and employee satisfaction.

The Agency noted that one selectee worked as a Lead Contact Representative for four months
and served 120-day details in that capacity in 2007 and 2009. Another selectee served as a Lead
Contact Representative on various dates from November 2009 – May 2010 and the third selectee
worked as a Quality Lead. The Agency stated that Complainant served as an acting Lead in May
2009. Four candidates (three female, one male) were selected for the GS-8 position but
Complainant was not eligible at that grade level.

The Agency determined that Complainant established a prima facie case of discrimination. The
Agency further determined that it articulated a legitimate, nondiscriminatory reason for
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Complainant’s nonselection. The Agency noted that its officials stressed that Complainant
needed more Lead experience and did not rank as highly as the other candidates in managerial
potential. The Agency stated that Complainant failed to show that his qualifications were plainly
superior to those of the selectees or that its explanation was pretextual.

With regard to complaint #3, claim (a), Complainant was ranked sixth among twelve candidates
certified as best qualified and he was ranked higher than five out of nine selectees. Several
Department Managers made the selections under this vacancy announcement. One of the
Department Managers stated that she chose the ninth-ranked candidate because she quickly
grasped techniques, demonstrated knowledge and displayed a team player’s attitude. She stated
that she believed the selectee was a better fit for the team than Complainant. Another
Department Manager asserted that she recommended the second-ranked candidate for the
position because that candidate was serving in a Lead capacity on a not-to-exceed appointment
that was expiring. An additional Department Manager stated that she chose the first and fifth-
ranked candidates because they were already trained and had more experience than Complainant
as a Lead. Another Department Manager recommended the third and eighth-ranked candidates
for selection. According to this Department Manager, the third-ranked candidate was an acting
Lead for several months and had experience working in a team that worked identity theft cases.
As for the eighth-ranked candidate, the Department Manager explained that this selectee was
previously detailed as a Quality Lead and had been fully trained on identify theft work. The
Department Manager stated that the selectee must be proficient with identity theft case
processing in order to be effective in the position. The Department Manager asserted that
Complainant would not have been effective because he would have required identity theft
training, coaching and several months of experience working the cases in order to become
proficient.

The Agency determined that all of the reasons set forth above constituted legitimate,
nondiscriminatory reasons for the selection decisions for claim (a) of complaint #3. The
selectees had experience in the specialized program and/or prior details or acting Lead
assignments. Complainant was regarded as needing more Lead experience such as assignments
in an acting capacity or on details. The Agency determined that Complainant’s argument that he
was higher ranked than some of the selectees did not address the articulated reasons that he did
not have greater experience or skills than the selectees.

With regard to claim (b) in complaint #3, two positions were available and Complainant was the
highest ranked candidate among seven candidates on the best qualified list. The selecting
official made no selections from this certificate. Subsequently, the selecting official chose two
candidates as temporary promotions from within the department rather than select a candidate
from the certificate. One of the selectees stated that the selecting official told her that she did not
like the names that she had to choose from on the best qualified list as the reason she did not
make the selection. According to this selectee, the selecting official also said that the
announcement was canceled due to people not being able to apply for the positions that she
wanted and she knew they wanted to apply. The Agency noted that Complainant was the only
candidate on the certificate who had prior EEO activity. The Agency stated that the selectee
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regarded the cancellation of the vacancy announcement and the promotions from within the
department as evidence of preselection, but the Agency noted that preselection by itself does not
constitute discrimination. The Agency did not discern evidence of discriminatory intent or
better qualifications on the part of Complainant.

Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

Initially, we shall address the Agency’s dismissal of claim (1) in complaint #1. The record
reveals that Complainant learned of his nonselection by November 12, 2009, but he did not
initiate contact with an EEO Counselor until April 2, 2010, after the expiration of the 45-day
limitation period. Complainant has not submitted sufficient argument or evidence to justify an
extension of the 45-day limitation period. Accordingly, the Agency’s dismissal of claim (1) on
the grounds of untimely EEO Counselor contact is AFFIRMED.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

As for claim (2) in complaint #1, we shall assume arguendo that Complainant set forth a prima
facie case of discrimination under the alleged bases. Nineteen selections were made for the
position of Lead Customer Service Representative, three male, sixteen female. The selecting
official stated that although Complainant had the skills to train others, he did not effectively
demonstrate the behavior they wanted others to emulate. The selecting official noted that
Complainant had been suspended on two occasions for behavior-related reasons. The selecting
official explained that Complainant had a reputation as being a “challenge” to work with and that
he tended to do things his way even though a different directive was issued. We find that the
Agency articulated legitimate, nondiscriminatory reasons for its decision not to select
Complainant. Complainant claimed that the selecting official did not select him because he had
previously filed a complaint against her in July 2009. However, Complainant has not provided
persuasive argument or evidence to support his contention.
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We find that Complainant has failed to establish that the Agency’s reasons for his nonselection
were pretext intended to hide discriminatory motivation.

Complainant claims in claim (3) of complaint #1 that he was subjected to harassment by
management officials. To establish this claim, Complainant must show that: (1) he belongs to a
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining
that a working environment is hostile, factors to consider are the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance at 6 (March 8, 1994).

Complainant claimed that he was subjected to a hostile work environment when his signature on
his suspension was allegedly taken under duress and that measures were undertaken to effect his
removal from the work facility. Complainant also claimed a hostile work environment existed
when he was not allowed to perform other duties such as Acting Customer Service Lead. We
observe that Complainant had been suspended and that he appeared at work unexpectedly on the
date that was supposed to be the first day of his suspension. We find no reasonable basis to
conclude that Complainant was subjected to a hostile work environment by the Agency’s
response, as he has not established that any of the alleged Agency actions in this claim were
severe or pervasive such that a legally hostile work environment existed. Accordingly, the
Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S.
17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). With
regard to these incidents, Complainant also has not established that he was treated differently
than similarly situated individuals outside his protected groups. In terms of not being permitted
to serve as Acting Customer Service Lead, Complainant has not refuted the Agency’s assertion
that he did not follow up with his Supervisor after she told him to come see her.

Complaint #2 concerned the selections for the position of Supervisory Contact Representative
(Leadership Development Program). We shall assume arguendo that Complainant set forth a
prima facie case of discrimination under the alleged bases. Complainant was ranked ninth
among thirteen candidates for the GS-9 position. The selecting official stated that she did not
select Complainant for the Supervisory Contact Representative position because he needed more
Lead Customer Service Representative experience and was not ready for a managerial
assignment. The selecting official maintained that each selectee possessed prior acting Lead or
Lead experience. The Agency stated that two of the three selectees from the GS-9 certificate
were rated “ready now” in three out of four categories. Complainant was rated “ready now” in
two evaluative criteria (customer satisfaction, business results) and “ready in 3-5 years” in
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leadership and employee satisfaction. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s nonselections.

Upon review of the record, we find that Complainant has not demonstrated that his qualifications
were plainly superior to the selectees so as to indicate that his nonselections were due to
discriminatory motivation. The Agency noted that one selectee worked as a Lead Contact
Representative for four months and served 120-day details in that capacity in 2007 and 2009.
Another selectee served as a Lead Contact Representative on various dates from November 2009
– May 2010 and the third selectee worked as a Quality Lead. The Agency stated that
Complainant served as an acting Lead in May 2009 and was not ranked as highly as the selectees
in managerial potential. We find that Complainant has not established that the Agency’s
explanation was pretextual.

With regard to the Lead Contact Representative positions at issue in complaint #3, we shall
assume arguendo that Complainant set forth a prima facie case of reprisal. As for the first
vacancy announcement at issue, there were nine selectees for the position. The Agency stated
that the selectees had experience in the specialized program and/or prior details or acting Lead
assignments. Complainant was regarded as needing more Lead experience such as assignments
in an acting capacity or on details. We find that the Agency presented legitimate,
nondiscriminatory reasons for not selecting Complainant.

Complainant argued that he was ranked higher than five of the nine selectees. However, one of
the Department Managers asserted that Complainant would not have been effective because he
would have required identity theft training, coaching and several months of experience working
the cases in order to become proficient. We find that Complainant has not established that the
Agency’s explanation for his nonselections was pretext intended to mask retaliatory intent.

As for the second vacancy announcement at issue, the selecting official chose two candidates as
temporary promotions from within the department as she decided it was not necessary to select a
candidate from the certificate. We find that the Agency has articulated a legitimate,
nondiscriminatory reason for its selection decision. Complainant maintains that he was the
highest ranked candidate among the seven candidates on the best qualified list. Complainant
argues that reprisal is evident given that the selecting official told one of the selectees that the
vacancy announcement was canceled due to her not liking the names she had to choose from on
the best qualified list and also that there were people not able to apply for the positions that she
wanted and she knew they wanted to apply. However, we find that this argument and evidence
are not sufficient to establish that Complainant’s nonselection was attributable to his prior EEO
activity, as that selectee’s testimony in her affidavit did not state that the selecting official
explicitly linked any candidates’ EEO activity to the reason she did not “like” the names put
forth for selection. The selectee testified that the selecting official tended to show favoritism to
the employees she liked. Given the myriad of reasons a supervisor may end up favoring some
employees over others, we cannot say that Complainant had sufficiently established that his prior
EEO activity was the reason he was not selected for the position in question.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision for all three complaints finding that Complainant did not establish that
discrimination occurred. The Agency’s dismissal of claim (1) in complaint #1 is also
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.
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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

September 15, 2017
Date