Alisa M.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

0120181441 (E.E.O.C. Aug. 16, 2019)

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

Alisa M.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120181441

Agency No. IRS-17-0381-F

DECISION

On March 21, 2018, 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 23, 2018 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 full-time seasonal
Contact Representative in Accounts Management at the Agency’s Wage and Investments Service
Center in Covington, Kentucky. Complainant entered duty with the Agency in March 2016, on a
one-year probationary period. Complainant underwent training with her new hire team from
March 2016 through August 2016. On August 16, 2016, Complainant was voluntarily placed on
furlough.

Complainant returned from furlough on November 13, 2016 and was placed under the supervision
of the Supervisory Contact Representative (SCR-1). After she returned from furlough,
Complainant asked for additional training, which SCR-1 provided. At this stage, Complainant and
all other Contact Representatives hired at the same time had completed official training and were

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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expected to follow the Agency’s procedures for resolving issues. Despite this, Complainant
continued to approach her supervisors outside of the protocol, which made it difficult for
management to properly supervise Complainant’s work. Complainant worked with several On-
the-Job Instructors (OJIs) between November and December 2016 for additional assistance and
was allowed one hour of reading time for each week she was on furlough. Complainant believed
that the OJIs were friends with management which tainted their reaction to her and the assistance
they provided. Complainant claimed that she was not properly trained and that one of the OJIs
“drilled” her rather than train her. Further, Complainant alleged that SCR-1 and the Department
Manager (DM) told all the Leads not to help her.

Both SCR-1 and DM said that Complainant received the same training as every other Contact
Representative. DM noted that Complainant was given more than adequate training and denied
telling anyone to ignore Complainant.

A coworker (CW1) said that DM was very dismissive of Complainant and would not give
Complainant any help. CW1 added that “[t]hose who struggled on the team or sat far away from
[DM] received very little help or instructions, while those who flourished were constantly being
coached.” (Emphasis in original.)

In December 2016, after completing the additional training, management completed two reviews
of Complainant’s work. Additionally, Complainant had requested a full day of job instruction for
paper and phone work around the same time. DM’s review of Complainant’s performance
revealed that Complainant was failing in six Critical Job Elements. As a result, on December 6,
2016, management placed Complainant on a performance action plan and implemented several
measures to assist Complainant in improving her performance. As a result of her work
performance and her placement on the action plan, Complainant was informed that she would not
be permitted to work overtime.

Complainant claimed that in November 2016, she learned that SCR-1 and DM had divulged
confidential EEO information to others. Complainant stated that she knew she was being targeted
for termination and humiliated as a result.

SCR-1 said she was made aware of Complainant’s prior EEO activity only when Complainant
asked her if she was aware. SCR-1 affirmed that Complainant informed management officials that
she had received an email regarding mediation for a prior EEO complaint. SCR-1 stated that
Complainant asked if she was aware of the complaint and SCR-1 replied that she was not. SCR-
1 denied sharing any information about Complainant’s EEO activity.

Complainant claimed that management would not respond to her emails about the status of her
probationary period and her action plan, but received no feedback. SRM stated that she followed
up with Complainant on December 30, 2016, and shared reviews of Complainant’s progress. Both
management officials confirmed that Complainant’s performance did not improve under the
performance action plan. On January 26, 2017, DM recommended to Labor Relations that
Complainant be terminated during her probationary period. The recommendation noted that
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Complainant was failing three Critical Job Elements and not at an acceptable level for two Critical
Job Elements. In addition, the recommendation noted that Complainant had been counseled
regarding returning from breaks and lunches late and that she had been charged absence without
leave (AWOL) due to insufficient available leave.

On January 23, 2017, Complainant reported to a new supervisor (SCR-2). On February 2, 2017,
SCR-2 issued Complainant a performance feedback memorandum documenting Complainant’s
work performance deficiencies. The memorandum noted that Complainant was not performing at
an acceptable level in three Critical Job Elements, including Customer Satisfaction – Knowledge;
Accuracy of Input; and Business Results – Efficiency. On February 27, 2017, Complainant was
issued a performance appraisal indicating that she was failing numerous Critical Job Elements.

On March 1, 2017, DM issued Complainant a notice of termination of employment based on
Complainant’s failure to perform at a satisfactory level. DM explained that Complainant’s
performance was not adequate and that she was given a memorandum explaining to her that if her
performance did not improve, she would be terminated. DM added that Complainant struggled
with the work, was one of the last to be certified, and still required additional time even after she
was given additional training. Further, Complainant was instructed numerous times to use the
Agency’s protocol for getting help, but did not follow it. Complainant demonstrated an inability
to follow instructions in correcting errors in her work. DM maintained that by the end of her
probationary period, Complainant should have been able to work independently and rarely ask for
clarification or assistance. DM noted that she determined that Complainant was not exhibiting the
necessary skills and acceptable performance to be retained after the probationary period. The
record contains Complainant’s performance action plan and several reviews that reflect multiple
errors by Complainant.

Complainant noted that she was terminated three days before her probationary period was set to
expire and that she was never given notice that her performance was continuing to suffer, and that
she was getting good reviews and good feedback.

On June 29, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated in
reprisal for prior protected EEO activity when:

1. On or about October 15, 2016, upon her recall from furlough and thereafter, the
Agency denied Complainant the opportunity to work overtime; failed to provide
adequate training; subjected Complainant to increased scrutiny; and informed
Complainant’s new supervisors and others about her prior protected activity; and

2. On March 1, 2017, the Agency terminated Complainant during her probationary
period.

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). The Agency issued a final decision pursuant
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to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant failed to prove that the
Agency subjected her to reprisal as alleged. In its decision, the Agency concluded that
management officials provided legitimate, non-retaliatory reasons for its actions for which
Complainant failed to rebut as pretextual. Complainant filed the instant appeal without submitting
any arguments or contentions in support.

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 he 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 802 n.13. 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).

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 the personnel action at issue, 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); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

2 It is not clear from the record whether Complainant requested a final decision pursuant to 29
C.F.R. § 1614.110 or did not reply to the notice of her right to request a hearing. Nonetheless,
Complainant has not challenged the Agency’s issuance of the final decision.
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Here, the Agency articulated legitimate, non-retaliatory reasons for its actions. As to Claim (1),
the Agency explained, and provided documentary evidence in support, that Complainant’s
performance was deficient, which caused the Agency to put her on a performance action plan. As
a result of being on the plan, Complainant was not eligible for overtime. Additionally, the Agency
provided evidence that Complainant received more training than her peers to try to assist her in
returning from furlough and to improve her performance. With regard to Complainant's claim of
breach of confidentiality, there is no evidence supporting her claim that management officials
disclosed any information about her EEO activity. SCR-1 noted that she only became aware of
Complainant’s EEO activity when she raised it herself and she did not disclose any information
about it to her Complainant’s new manager and lead.

As to her termination, the Agency explained that Complainant’s performance did not improve even
after being placed on the performance action plan. Agency officials confirmed that after
extensively documenting Complainant’s performance issues, management decided to terminate
Complainant because she did exhibit the necessary skills and acceptable performance to be
retained after her probationary period.

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 retaliatory animus. Complainant simply has not done so. Based on a review of the entire
record and all arguments, including those not specifically repeated herein, we find the Agency did
not subject Complainant to reprisal.

Hostile Work Environment

Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of
harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by Agency management were
motivated by retaliatory animus. 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.
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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.
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.
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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 16, 2019
Date