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

Equal Employment Opportunity Commission

Nov 13, 2018

0120171981 (E.E.O.C. Nov. 13, 2018)

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

Ashlee P.,1
Complainant,

v.

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

Appeal No. 0120171981

Hearing No. 510-2017-00177X

Agency No. IRS-16-0423-F

DECISION

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 April 21, 2017, 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

Complainant worked as a Contact Representative, GS-0962-08 at the Agency’s Wage and
Investment Service Center in Jacksonville, Florida. On July 29, 2016, Complainant filed an EEO
complaint in which she alleged that a former Operations Manager who served as the selecting

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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official (SO)2 for a five-year Leadership Development Program (LDP) cadre did not select her for
a position within that cadre after she had completed a three-year LDP.3

Complainant was informed by her Department Manager (DM) and a Supervisory Contact
Representative (SCR) on April 21, 2016, that her participation in the three-year LDP cadre had
expired in January of that year. Investigative Report (IR) 90-91, 95. Complainant had been
selected to participate in the three-year LDP cadre in January 2013. IR 90, 119, 128. Complainant
averred that she was not aware that a five-year LDP cadre even existed. She further stated that on
February 14, 2014, she applied for and made the best-qualified list for a frontline manager trainee
position advertised under Vacancy Announcement No. 14CS2-WIM0460-0962-9-7-T. She also
stated that the position was being offered under the auspices of a five-year LDP cadre that was
being formed in 2014. IR 91-92. She averred that there were no interviews for the five-year LDP
cadre, and speculated that the SO made the selections without conducting interviews, although she
could not identify the date on which the selections were made. IR 95. Finally, she averred that
when she asked the DM why she did not qualify for the five-year cadre, the DM informed her that
her application was not considered because they had already filled all of the available vacancies.
IR 95.

The DM averred that individuals who applied for positions under the auspices of the five-year LDP
cadre were placed in the program in accordance with the ranking of their application packages by
the Human Resources office and the number of available vacancies. She stated that she had been
provided with a list of the selectees for the twenty-six vacancies covered by the five-year LDP,
and that Complainant was not among them because she was ranked twenty-seventh. The DM
informed Complainant on April 21, 2016 of the expiration of her participation in the three-year
LDP cadre and that she was not among the selectees for the five-year cadre. IR 100, 120, 125,
127, 132, 155, 175, 177-78.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
on January 29, 2017, withdrew her request.

2 The SO retired on February 28, 2015. The EEO investigator attempted to contact the SO on
September 27, 2016 in order to obtain an affidavit, but was unsuccessful. Investigative Report
146-49, 155.

3 The Agency dismissed several additional claims including an allegation of discriminatory
harassment that occurred between 2002 and 2015 on the grounds that Complainant failed to contact
an EEO counselor within the 45-day time limit prescribed in EEOC Regulation 29 C.F.R.
§ 1614.015(a)(1). Complainant mentions the matters on appeal, but did not specifically challenge
the Agency’s decision to dismiss for untimely EEO counselor contact. Accordingly, we find no
basis to disturb the Agency’s dismissal and we affirm the Agency’s dismissal of Claim B.
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Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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 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, 802 (1973). As a first step, a complainant would normally 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. Corp. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed in this case, however, since the Agency
articulated legitimate and nondiscriminatory reasons for its conduct, namely that although
Complainant was highly qualified and eligible for promotion to a GS-09 developmental
assignment, she was ranked at 27 and there were only 26 vacancies for the five-year LDP. See
U.S. Postal Service 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 Prods., 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). Pretext can be demonstrated by showing such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's
proffered legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov.
20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked
why she believed that her race and prior protected EEO activity were factors in her nonselection
for the five-year LDP cadre, Complainant responded that 18 of the 26 selectees were African-
American, that the SO, who was African-American, was behind a “big movement to promote the
African-American community” within the facility, and because “they (meaning African-
Americans) were “all connected by church, by family, by color, etc.” IR 97-99.

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Agencies have broad discretion to choose among equally qualified candidates as long as the
selection is not based on unlawful considerations. Complainant v. Dep’t of Homeland Sec., EEOC
Appeal No. 0120141478 (Jul. 31, 2015). Apart from her own unsupported and conclusory
assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from
witnesses other than herself nor documents that contradict the explanation provided by the DM or
the SCR, or which undermine their veracity. We therefore concur with the Agency in finding that
Complainant has not presented sufficient evidence to establish the existence of a discriminatory or
retaliatory motivation on the part of any official involved in the selection process for vacancies
under the sponsorship of the five-year LDP cadre.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

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

November 13, 2018
Date