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

Equal Employment Opportunity Commission

Jul 20, 2018

0120161764 (E.E.O.C. Jul. 20, 2018)

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

Ayana C.,1
Complainant,

v.

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

Appeal No. 0120161764

Agency No. IRS-15-1337-F

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 1, 2016, concerning her 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a seasonal Tax
Examining Technician, GS-6, at the Agency’s Covington, Kentucky Service Center facility. On
May 12, 2015, Complainant contacted an EEO Counselor regarding her complaint. Unable to
resolve the matter informally, Complainant filed her complaint on June 30, 2015. The Agency
framed the claims as whether Complainant was discriminated against in reprisal for prior EEO
activity under Title VII when:

(1) On May 6, 2015, the Agency issued a memorandum citing her for failing to follow a
supervisor’s directive;

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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(2) On May 12, 2015, she was issued a memorandum for being disruptive in the workplace;

(3) On May 12, 2015, the Agency issued a letter informing her that her Within-Grade
Increase (WIGI) was being delayed due to the decline in her performance;

(4) On June 6, 2015, the Agency moved her, a seasonal employee, to a new Department and
furloughed her until sometime in 2016;

(5) On multiple dates between August 19, 2014, and March 5, 2015, the Agency charged her
with being Absent Without Leave (AWOL) after she failed to submit Family and
Emergency Medical Leave (FMLA) medical documentation by a deadline of March 9,
2015; and

(6) On March 31, 2015, the Agency issued an Annual Evaluation rating her as failing on
Critical Job Element (CJE – Business Results/Efficiency).

Complainant does not challenge the Agency’s framing of the claims. On July 29, 2015, the
Agency accepted claims (1) – (4) for investigation and dismissed claim (5) due to untimely EEO
Counselor contact and dismissed claim (6) for raising the same matter in a grievance procedure
pursuant to 29 C.F.R. §§ 1614.107(a)(2) and (4), respectively. After the Agency completed the
investigation of the accepted claims, Complainant requested a final Agency decision without a
hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut. On appeal, Complainant indicates that the Agency’s decision
dismissing claims (5) and (6) and finding no discrimination regarding claims (1) – (4) was
improper.

ANALYSIS AND FINDINGS

Regarding claim (5), Complainant does not dispute the fact that the alleged incidents occurred
from August 18, 2014, to March 5, 2015. On appeal, Complainant, other than merely indicating
she timely contacted an EEO Counselor, does not specifically provide a date of her EEO contact.
The EEO Counselor’s Report indicates that Complainant contacted an EEO Counselor regarding
the matter on May 12, 2015, which was beyond the 45-day time limit set by the regulations. 29
C.F.R. § 1614.105(a)(1). We note that according to the EEO Contact Intake Form, it appears
that Complainant initiated EEO contact on May 5, 2015, which, even if correct, is still untimely.
On appeal, we find that Complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor. Thus, we find that the
Agency properly dismissed claim (5) due to untimely EEO contact. 29 C.F.R. § 1614.107(a)(2).

Regarding claim (6), we find that the Agency properly dismissed the claim for stating the same
matter in a grievance procedure which permitted allegations of discrimination to be raised
therein.
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The record indicates that Complainant previously filed two grievances on April 21, 2015, and
May 6, 2015, regarding the same matter alleged in the instant complaint. Thus, we find that the
Agency properly dismissed claim (6) pursuant to 29 C.F.R. § 1614.107(a)(4).

Turning to claims (1) – (4), 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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was a seasonal Tax
Examining Technician, GS-6, in Covington, Kentucky.

Regarding claims (1) and (2), Complainant’s supervisor (S1) indicated that on May 6, 2015, he
issued Complainant the memorandum for failure to follow a directive/unprofessional conduct.
Specifically, S1 stated that Complainant failed to complete her previously assigned work and
when asked, she refused to give the status of the assignment. S1 consulted with Labor Relations
and based on their advice, S1 issued the subject memorandum. S1 also stated that when he went
to Complainant on May 6, 2015, to issue her the memorandum, she became confrontational and
began shouting at him very loudly and her behavior was disruptive. Thus, stated S1, he issued
Complainant the May 12, 2015 memorandum due to her unprofessional conduct/workplace
disruption on May 6, 2015.

Regarding claim (3), S1 indicated that on May 12, 2015, he issued Complainant a letter
informing her that her WIGI would be withheld due to her poor work performance. Specifically,
S1 stated that his employees’ work, including Complainant’s work, were input weekly from their
timesheets into the payroll/timekeeping system known as Single Entry Time. S1 indicated that a
great deal of Complainant’s reports were a “no rating” which meant she either did not perform
enough work and/or did not spend enough time doing the work for the measurement to “kick in.”
In the May 12, 2015 letter, S1 noted that Complainant was previously informed of her less than
fully successful work performance on December 16, 2014, November 18, 2014, and October 21,
2014.

Regarding claim (4), Complainant’s manager (M1) indicated that on May 12, 2015, Complainant
requested and was granted a transfer out of S1’s team. Thereafter, on May 20 and 27, 2015,
Complainant requested and was granted a transfer out of her department. Complainant was
voluntarily transferred to a different department which was the only available department where
she could be transferred as a Tax Examining Technician at the relevant time.
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M1 noted that she had no involvement with Complainant being furloughed in her new
department and she was informed later that all seasonal employees, including Complainant, in
that department were furloughed due to a lack of work.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. After a review of the record, we find
that Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated
by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision dismissing claims (5) and (6) and finding no
discrimination regarding claims (1) – (4) is 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

July 20, 2018
Date