Brad M.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.

Equal Employment Opportunity Commission

Sep 18, 2018

0120161675 (E.E.O.C. Sep. 18, 2018)

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

Brad M.,1
Complainant,

v.

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

Appeal No. 0120161675

Hearing No. 520-2015-00107X

Agency No. IRS-13-0589-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 March 28, 2016, final order
concerning his 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
order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Estate Tax Attorney,
GS-0905-13, at the Agency’s facility in Trenton, New Jersey. On August 13, 2013, Complainant
filed an EEO complaint alleging that the Agency subjected him to unlawful harassment on the
bases of his race (Black), sex (male), and in reprisal for prior protected EEO activity when:

1. in March 2013, Complainant’s supervisor (S1) accused him of wearing cologne and
asked other employees to smell him;

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. in April 2013, S1 changed a previously favorable open case review from pass to
fail;
3. on May 10, 2013, S1 failed him on his mid-year report and removed him from the
telework program;
4. on an unspecified date, S1 removed him from the Superuser program;
5. on May 14, 2013, S1 excluded him from participating in a classification detail;
6. on June 4, 2013, Complainant’s Manager (M1) denied his request for a transfer;
7. on a monthly basis, S1 writes counseling statements about him and places the
information in a file;
8. on July 24, 2013, S1 intentionally failed him on an open case review; and
9. on August 12, 2013, Complainant discovered that S1 had assigned him a caseload
that was too high.2

At the conclusion of the investigation, 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. The AJ
found that, after viewing the evidence in a light most favorable to Complainant, a decision without
a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued
a decision without a hearing on March 22, 2016, finding no discrimination. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged. On appeal, Complainant alleges that the
AJ erred in issuing a decision without a hearing and in failing to analyze his claims as allegations
of disparate treatment.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An

2 The claims have been renumbered as one claim was incorrectly listed twice in the record, and
Complainant’s claim that on February 1, 2013, S1 directed him to obtain a web camera was
dismissed for having been previously raised through the grievance process. Complainant has stated
this claim should be dismissed and it is not being challenged on appeal. Therefore, we shall not
address this claim.
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issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, it is not
appropriate for an AJ to issue a decision without a hearing. In the context of an administrative
proceeding, an AJ may properly issue a decision without a hearing only upon a determination that
the record has been adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC
Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing was
appropriate, as no genuine dispute of material fact exists. It is well-settled that harassment in the
workplace that occurs because of membership in a particular group or because of participation in
protected EEO activity is actionable. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002, p. 2 (June 18, 1999). To prevail in a
harassment claim, complainant must show that: (1) he belongs to a statutorily protected class; (2)
he was subjected to unwelcome conduct; (3) the conduct complained of was based on his previous
EEO activity or her protected basis; (4) the conduct had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. McCleod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999). The conduct at issue
must be so offensive that it alters the conditions of complainant’s employment. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510
U.S. 17, 21-22 (1993); Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57, 67 (1986). The
harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the
victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (March 8, 1994).

Here, we concur with the AJ’s finding that Complainant failed to show that any of the actions
alleged were based on discriminatory or retaliatory animus. Specifically, the record shows that S1
became Complainant’s first-level supervisor in July 2012. M1 states that S1 was brought in to
supervise Complainant’s group because the previous supervisor “failed to teach the trainees proper
procedures, tax law, and other technical requirements” and that S1 “was highly proficient in all of
[these areas].” M1 further states that S1 had the difficult task of retraining her subordinate
employees, including Complainant, and that there was a great deal of hostility in the group toward
her approach. The record shows that many of Complainant’s coworkers, including those outside
of his protected classes, took issue with S1’s supervisory style and to her reviews of their work
product, with one former coworker stating that S1 was “the poorest manager” he had “in [his]
entire employment history.” We do not find, however, that Complainant has shown that the actions
alleged were related to his sex, race, or prior EEO activity. In so finding, we note that the majority
of Complainant’s allegations relate to management’s efforts to assist him in improving his work
performance or, as with claim (1), are not so objectively offensive as to alter the conditions of his
employment.

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Next, with respect to the discrete acts alleged, 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 Construction 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 804 n. 14. The burden then shifts to the
Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of
Community 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 Products, Inc., 530 U.S. 133 (2000).

Here, although Complainant contends that the AJ failed to conduct a disparate treatment analysis,
we find that the AJ’s decision clearly sets out the Agency’s articulated, legitimate,
nondiscriminatory reasons for its actions and the conclusion that Complainant failed to show that
these reasons were pretextual. Specifically, the record shows that management found that
Complainant needed assistance in improving his work performance and in managing his inventory.
With respect to claims (2) and (8), S1 states that her determination in the case review at issue was
that he had not met various requirements with respect to the specific cases under review, which
resulted in overall ratings of “not met.” S1 further states that these ratings were fully supported
and “adequately explained” to Complainant.

As to claims (3) - (5) and (7), the record shows that S1 conducted a mid-year appraisal for
Complainant in April 2013, in which she determined that he was failing in two critical elements.
She also determined that he had “inefficient and poor case management skills” which led to his
inventory containing a “high number of overage cases.” In response to these performance
deficiencies, management temporarily suspended Complainant’s telework privileges, removed his
collateral duty in the superuser program, and did not offer him the opportunity to attend a
classification detail. Management states that these actions were taken in order to allow
Complainant to focus on his primary duties and improve his performance. The record also shows
that, in response to Complainant’s poor mid-year appraisal, S1 scheduled monthly conference calls
with Complainant to review his case work and that a memo was prepared after each call as a record
of what had been discussed.

As to claim (6), M1 states that Complainant’s request for a transfer was denied because she
believed he was requesting the transfer in order to avoid addressing the performance issues raised
by S1. Therefore, she did not believe a transfer was justified. Finally, as to claim (9), the evidence
does not support Complainant’s contention that his caseload was too high, as the record shows that
his caseload was commensurate with the other employees in his group. We find that Complainant
has not shown that the Agency’s articulated reasons for its actions were a pretext for unlawful
discrimination.

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CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are no
genuine issues of material fact. We further find that the AJ appropriately issued a decision without
a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision
and the Agency’s final order finding no discrimination 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.
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.
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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 18, 2018
Date