Addie V.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Dec 8, 2017

0120160044 (E.E.O.C. Dec. 8, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Addie V.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120160044 Agency No. IRS-14-0697-F DECISION On September 16, 2015, 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 August 13, 2015, 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. 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 (CR), GS-7, Wage and Investment Division, in Austin, Texas, which was a full- time Seasonal position. On November 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian) and in reprisal for prior protected EEO activity when: (1) on March 27, 2014, her manager (S1) subjected her to a two- hour feedback session and promised monthly feedback thereafter; however, Complainant had received no further feedback as of the filing of her complaint; (2) on April 15, 2014, S1 denied Complainant’s request for “Balance Due Training” and sent Complainant to 1040X training 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. 0120160044 2 which she had already attended and been certified for; (3) beginning on May 27, 2014, and continuing until June 20, 2014, S1 subjected Complainant to “100% review” of her work; (4) on or around July 31, 2014, S1 issued Complainant a mid-year performance appraisal referencing issues management had not previously counseled her about verbally or in writing; (5) beginning August 4, 2014, and continuing until August 15, 2014, S1 repeatedly required Complainant to report fifteen minutes before her shift started and Complainant was not compensated for this time; and (6) on or before August 15, 2014, S1 did not provide Complainant a seasonal employee departure appraisal, leaving her annual evaluation based solely upon the unsatisfactory mid-year evaluation and providing Complainant no opportunity to demonstrate improvement. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a 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 decision pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Claim 1 - Two-Hour Feed Back March 27, 2014 Complainant asserted that S1 conducted a two-hour feedback session with her on March 27, 2014, and promised monthly feedback thereafter. Complainant stated there was no other feedback in January and February 2014, and April to June 2014. According to Complainant, the feedback showed that she opened four cases and did not close them, which resulted in S1 concluding that she did not know how to work the cases. S1 testified that she did not have a two-hour feedback session with Complainant on March 27, 2014, or any other date. She stated that the workload review on March 27, 2014, was approximately 30 minutes. According to S1, Complainant told her the cases were difficult and she was not sure how to work them, so S1 offered to have a more experienced CR sit with Complainant as an On-the-Job Instructor (OJI). However, Complainant declined the offer. The documentary evidence in the record contains S1’s calendar showing that on March 27, 2014, she shared a Critical Job Elements (CJE) review with Complainant and offered to have an employee (C1) sit with Complainant an hour each day, and Complainant said she would have to think about it. S1 asserted that the only month review and/or feedback that was not provided occurred during the Month of May 2014, when Complainant was in training. Claim 2 - Denial of Balance Due Training and assignment to 1040X Training 2 Complainant includes with her appeal submission a signed form to elect a final agency decision instead of a hearing before an AJ which is dated June 4, 2015. Since Complainant does not contest the fact that a final agency decision was issued, it is not necessary to determine whether, or not, she failed to timely request one. 0120160044 3 Complainant stated that the “poor” feedback she received on March 27, 2014, gave S1 a chance for her to deny the Balance Due Training and force her to again attend 1040X training. Complainant also stated that she did not request Balance Due Training but was supposed to attend it anyway. S1 agreed with Complainant that she did not request Balance Due Training. S1 asserted that the training conflicted with the 1040X training that Complainant was scheduled to attend. S1 explained that Balance Due Training was the next progression of Complainant’s learning plan and that it was delayed so that she could attend 1040X training and become proficient in 1040X. Acknowledging that Complainant had previously attended 10140X training and been certified, S1 testified that Complainant’s performance had declined and she had stated to S1 on several occasions that she did not feel she had a solid understanding of the 1040X program. We note that Complainant alleges that a team member (C2) who disagreed with various decisions made by S1 had not been allowed to attend Balance Due Training either. The record indicates that C2’s proficiency needed improvement and C2 was placed in the same 1040X training that conflicted with the Balance Due Training. Complainant does not assert (and the record does not reflect) that C2 participated in prior EEO activity. In addition, the record shows that C2 is Hispanic. Claim 3 - 100% Review of Work Complainant testified she was placed under 100% review of her work, although such reviews were supposed to be reserved for employees who had not been certified on 1040X. S1 explains that 100% review of cases closed is part of the OJI period that follows technical training and that all employees who attended the training had 100% review of their cases for a two-week period, which is what occurred in Complainant’s case. Claim 4 - Mid-Year Performance Appraisal Complainant stated that on July 31, 2014, S1 issued a mid-year performance appraisal that included many comments that were negative and unjustified. Complainant stated that because she was furloughed on August 15, 2014, her mid-year appraisal became her departure appraisal and was the basis for her appraisal when she returned to work. Therefore, Complainant concluded that there was no opportunity for improvement. S1 testified that none of the CJEs had been changed from Complainant’s prior annual appraisal. S1 further explained that all information in the narratives had been discussed previously with her on numerous occasions, either verbally or in writing as a result of Embedded Quality Review System (EQRS) reviews. The documentary evidence shows that Complainant’s mid-year evaluation reflected that she was rated “Meets” or “Exceeds” on every CJE. The critical statements written by S1 in 0120160044 4 Complainant’s mid-year appraisal fell under the CJEs dealing with timeliness issues. S1’s critical statements include the assertion that Complainant needs to refrain from placing cases in a monitor status simply because she is unsure of what action to take and instead should contact the Lead or Manager for assistance. In addition, S1 did note that if she had to give Complainant an annual rating at that time she would have rated Complainant a “Fail” in this CJE because she often suspends cases she does not know how to work to “monitor status” instead of researching the issue and resolving the case. S1 noted that “many of those cases are not complex and could easily be worked following IRM guidance.” S1 also stated that “[y]ou often fail to recognize important assignments and independently adjust your duties to deal with unanticipated changes on the workload. For example, you do not transition smoothly from working paper inventory to answering the toll-free line when required to do so due to business needs. You are often not available to take incoming calls when scheduled to do so.” Claim 5 - Requirement to Report to Work Early Complainant stated that beginning August 4 and continuing until August 15, 2014, she was required to report to work 15 minutes before the start of her shift and she was not compensated for this extra time at work. Complainant noted that S1 stated in her mid-year appraisal that Complainant was often not available to take incoming calls when scheduled to do so. S1 also wrote that Complainant’s tour of duty begins at 4:30 p.m. and she should be available to take calls at this time. Complainant states that before she is able to take incoming calls when she arrives to work, she needs to start her computer, load required updates, log into different programs, check her email for the day’s phone requirements, clean and clear off the table of her shared workspace, and sanitize the desk. Complainant stated that to start taking calls at 4:30 p.m. sharp, she must come in at least 15 minutes prior to the start of her shift. S1 denies ever asking or requiring Complainant to report to work prior to the beginning of her shift. S1 states that it takes Complainant approximately 20 minutes to do what should take no more than five minutes. Claim 6 - No Departure Appraisal Complainant stated that this was the first time she had not received a departure appraisal. S1 testified that Complainant’s mid-year performance appraisal dated July 2, 2014, was shared with her on July 31, 2014, and covered the period from December 1, 2013, through June 30, 2014. S1 further explains that Complainant requested to be placed in non-work status on August 15, 2014. According to Agency policy, a departure appraisal was not prepared because there were not at least 60 days from the date of the mid-year appraisal to the date Complainant was placed on non- work status. The documentary evidence shows that on August 9, 2015, Complainant emailed S1 to notify her that she volunteered to be released effective August 15, 2014. 0120160044 5 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”). 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). She must generally 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We agree with the Agency’s analysis and finding that management officials articulated legitimate, non-discriminatory reasons for its employment actions. We also find that the record fails to establish pretext or that any responsible management official’s employment action was motivated by discriminatory/retaliatory animus. As noted above, S1 articulated legitimate, non- discriminatory reasons for the employment actions. Specifically, she: (1) denied ever having a two-hour feedback review session with Complainant on March 27, 2014, or any other date; (2) explained that Balance Due Training was delayed for Complainant because she needed to repeat 1040X Training to strengthen her skills; (3) stated that 100% review of work was standard for employees after 1040X Training; (4) asserted that critical notations in Complainant mid-term review were raised with her previously and accurately reflect Complainant’s work performance; (5) explained that Complainant was not required to report early for work and that she expected it to take only two to five minutes of prep-time before taking calls; and (6) explained that no departure appraisal was prepared because Complainant requested to be placed in non-work status on August 15, 2014, and did not work at least 60 days after the date of the mid-year appraisal, in accordance with Agency policy. Aside from Complainant’s uncorroborated bare assertions, the record is devoid of evidence of pretext. Moreover, the EQRS reviews contained in the record support S1’s assertion that 0120160044 6 Complainant had some performance errors. In addition, Complainant failed to identify similarly situated comparison employees who were treated more favorably than Complainant. Lastly, the record is devoid of evidence of racial or retaliatory animus on the part of any responsible management official. Finally, we note that Complainant asserted that the investigative file is inadequate or deficient. We note that she had the right to request a hearing to supplement the record but chose not to do so. We discern no deficiencies in the record such that it is inadequate upon which to make a decision. 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 finding that Complainant failed to prove her claims as alleged. 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. 0120160044 7 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 December 08, 2017 Date