Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 15, 2014

0120122087 (E.E.O.C. Jan. 15, 2014)

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

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120122087

Hearing No. 531-2011-00118X

Agency No. IRS-10-0028-F

DECISION
Complainant filed an appeal from the Agency’s March 9, 2012
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.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Information Technology Specialist at the Agency’s Modernization Information Technology
Services facility in Lanham, Maryland. Complainant applied for a Legis Congressional
Fellowship (Fellowship) by submitting his application to M1, on October 6, 2009. The
Fellowship is a competitively-filled 12 month program whereby up to four IRS applicants are
selected to spend a year working on Capitol Hill. Ultimately, Complainant’s application for
the Fellowship was not forwarded by M1 for consideration. On January 21, 2010, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the basis of race
(Hispanic)1

when:
On October 7, 2009, Complainant’s manager prevented him from applying for the
Legis Congressional Fellowship training program.

1 The Commission considers Hispanic to be a designation of national origin rather than race.
0120122087

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s August 1, 2011, motion for a decision
without a hearing and issued a decision without a hearing on March 1, 2012.

In her Decision, the AJ found that the material facts were undisputed. Specifically, the AJ
found that Complainant met the basic qualifications for the Fellowship program. The AJ
found, however, that Complainant’s application did not show that he had a strong
understanding or familiarity with legislative affairs or the IRS organization and compliance
programs. The AJ considered M1’s statement indicating M1 did not believe it would be cost
effective to send Complainant to the Fellowship program because neither Complainant nor the
Agency were likely to benefit from Complainant’s participation in the program.

The AJ noted that initially, M1 provided feedback to Complainant regarding ways to
strengthen his application, but that whatever changes Complainant made to his application did
not address his training or interest in legislative affairs. Additionally, the AJ considered M2’s
statement that Complainant worked in one area, Test Assurance and Documentation Domain,
but that M1 did not feel this experience showed Complainant had a strong understanding of
IRS organization and compliance programs.

The AJ noted no evidence that M1 and M2 approved any applications for the Fellowship
program from any other employees.2

Accordingly, the AJ found that Complainant did not
identify any other employees, not in his protected classes who were treated any better than he
was treated under the same or similar circumstances regarding the Fellowship applications.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not
approving Complainant’s application, namely, that Complainant had not, in the past, expressed
an interest in legislative policy and Complainant’s individual development plan (IDP) did not
indicate an interest in legislative affairs or IRS policy issues. The AJ found that Complainant
did not present evidence that the Agency’s reasons were a pretext to mask 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 states that the evidence shows he met the qualifications for the
position and that the Agency’s decision was a pretext to thwart his career development by
denying him the training that would have provided him with additional leadership skills and
knowledge of the legislative process he could have used in his position had he been given the
opportunity.3

2 The AJ found the record was not quite clear whether M2 approved any applications, but M1
did not and nothing indicates M2 did.
3 The Agency reports that Complainant retired from the Agency in August 2011.
0120122087

3

ANALYSIS AND FINDINGS
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 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 103, 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, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf.

29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. 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
0120122087

4
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, 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).
In the instant case, we find the AJ properly issued her Decision without a hearing. We find, as
did the AJ, that the material facts are not in dispute and that the record is sufficiently
developed to render a decision without a hearing. We find no dispute that Complainant met
the basic qualifications for the Legis Fellowship program and that having done so, M1
consulted with M2 regarding Complainant’s application. We find no dispute that M1
suggested changes to Complainant’s application package that M1, in consultation with M2,
believed would make Complainant a stronger competitor for selection to the program. We find
no dispute that M1’s suggestions were communicated to Complainant.

We find the undisputed evidence shows that M1 did not approve and forward Complainant’s
application. The record shows that M1 doubted the value the Fellowship would provide to
Complainant that would in turn be brought to Complainant’s position at the conclusion of the
program. The record also shows that M1 questioned Complainant’s expressed interest in
legislative affairs or legislative policy matters. We find Complainant did not present any
evidence linking his race/national origin to the application process.

We find that M1, M2 and M2’s supervisors concurred in the view that Complainant’s
application package was inadequate to show Complainant was a strong candidate overall for the
program. M2 stated that she did not find that Complainant’s application package demonstrated
a strong understanding of the Agency’s organization and compliance programs, nor an
understanding of legislative affairs and for that reason declined to support Complainant’s
application to the Fellowship program. We find Complainant presented no evidence that his
race/national origin played any role in M2’s decision to not support Complainant’s application.

Finally, we note that M3 (M2’s supervisor) stated that to be submitted for consideration, an
application must be strong and “defensible,” which M3 felt Complainant’s application was not.
M3 stated that she communicated to M2 and M1 that Complainant’s application package lacked
a demonstration that Complainant was familiar with the legislative process as it concerns the
Agency and again, that Complainant did not possess a strong background in IRS organization
and compliance programs.

We find that drawing every reasonable inference in Complainant’s favor, that Complainant did
not present evidence from which an inference could be drawn that his race/national origin
more likely than not, influenced M1, M2 and M3 to decline their support for Complainant’s
application to the Fellowship program.

0120122087

5

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
0120122087

6

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
January 15, 2014