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

Equal Employment Opportunity Commission

Jul 25, 2014

0120131510 (E.E.O.C. Jul. 25, 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. 0120131510

Hearing No. 570-2012-00217X

Agency No. IRS-11-0480-F

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s February 15, 2013 final order 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply
Management Specialist in the Agency’s Wage and Investment Division in Washington, D.C.
Complainant is deaf and she states that her speech is unclear.1

1 In April 2011, Complainant filed a formal complaint (Agency No. IRS-11-0264-F) alleging
that the Agency failed to effectively accommodate her disability. Complainant appealed the
Agency’s final order fully implementing an Administrative Judge’s summary judgment decision
finding no discrimination. The Commission reversed the final order and remanded the
complaint for a hearing as a sanction after the Agency failed to comply with the Commission’s
order to submit the entire record. See EEOC Appeal No. 0120123107 (Mar. 18, 2014).
Commission records indicate that the complaint is currently pending a hearing before the
Houston District Office.
Complainant believes that,
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since November 2009, she has been required to accomplish more work and perform more tasks
than other employees and that management has impeded her opportunities for career
advancement. For example, Complainant claims that management has denied her requests for
temporary details and training courses. In addition, beginning in March 2010 through
February 28, 2011, Complainant alleges that management unfairly distributed work
assignments and set high expectations for her. Complainant believes that as a result, she
received a “Fully Successful” rating rather than “Outstanding” on her performance appraisal in
March 2011.

In the appraisal, Complainant’s manager (M1) rated Complainant as “Outstanding” in two of
five Critical Job Elements (Employee Satisfaction – Employee Contribution and Customer
Service – Knowledge), “Exceeds Fully Successful in one Critical Job Element (Customer
Satisfaction – Knowledge), and “Fully Successful in two Critical Job Elements (Business
Results – Quality and Business Results – Efficiency). M1 rated Complainant as “Exceeds
Fully Successful” overall. M1 noted in the appraisal that Complainant was assigned a written
assignment, but needed to re-do the assignment because her discussion strayed from scope and
used material from a vendor’s written materials. M1 stated several times that Complainant
occasionally misunderstood the focus or scope of issues and that she needed to ensure that she
properly cited copyrighted work that she used in assignments. Further, M1 noted
Complainant’s belief that she had a heavy workload and assured her that her workload was no
greater than any other employee’s in the section. M1 advised Complainant that she needed to
focus on her assignments and prioritize her work to meet deadlines and produce quality work.
Finally, M1 listed several major assignments Complainant was assigned, a few of which
Complainant successfully completed; however, she missed deadlines for or failed to complete
several more. M1 emphasized that Complainant needed to manage her time more effectively
to meet deadlines.

In August 2010, Complainant applied for a Management and Program Analyst position under
Vacancy Announcement No. 16-05-0W1212NB. The candidates’ application materials were
reviewed and ranked by a ranking official and forwarded to the Human Resources Specialist.
The Human Resources Specialist created the Best Qualified Certificate and forwarded the
certificate to the Selecting Official (SO). SO reviewed the certificate and made a selection.
Complainant was found to be qualified but was not selected.

On July 29, 2011, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of sex (female), religion (Jewish), disability, age (60), and in reprisal
for prior protected EEO activity when:

1. On or about March 31, 2011, Complainant received an unjustifiably low annual
performance appraisal rating of 4.0 for the rating period March 1, 2010 to February
28, 2011;

2. Since November 2009, Agency management has taken actions that have impeded
her career advancement and/or failed to give her the same career-enhancing
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opportunities as other employees, including being denied training requests and
temporary detail opportunities and being required to accomplish more work and
perform more tasks than other employees; and

3. On an unspecified date, Complainant was not selected for the position of
Management and Program Analyst under Vacancy Announcement No. 16-05-
0W1212NB.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on February 6,
2013.

In his decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to her performance appraisal, Complainant’s manager
(M1) affirmed that Complainant was rated as she was because Complainant submitted work
that was not within the scope of her assignments and on two occasions, submitted work that
was actually created by someone else. Complainant argued that her job duties were changed
dramatically and she was given new things to do. M1 stated that most of Complainant’s
section was required to learn a new field known as “knowledge management.” Further, M1
maintained that Complainant was not given credit for two work assignments because she did
not submit them to the project leader for review as all section employees had been directed.

As to career advancement opportunities, the AJ determined that in November 2009,
Complainant requested more work, but she did not like the assignments she was given.
Complainant was permitted to go on details to other offices in the hope that they would lead to
other assignments or promotions; however, due to staffing limits and budget considerations,
none of them did so. Further, as to her workload, the AJ found that Complainant failed to
prove that her work assignments were different than that of her co-workers. Finally, as to her
non-selection, the SO affirmed that once she received the list of best qualified applicants, she
decided to select an individual with whom she was familiar.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been discriminated or
retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision. The instant appeal followed.

2 The Agency dismissed several additional claims as untimely and for failure to state a claim.
Complainant has raised no challenges to the dismissal of these claims on appeal; therefore, the
Commission will not address them in this decision.
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CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ made several procedural errors including denying
her motion to amend, denying her objection to the Agency’s motion for summary judgment,
and granting the Agency’s motion for summary judgment. Complainant contends that her
manager subjected her to unwarranted increased work scrutiny and set her up for a lowered
performance rating. In addition, Complainant argues that she did not object to her workload;
rather, she believed that she was given unrealistic deadlines. Finally, Complainant raises
arguments related to her reasonable accommodation claim. Accordingly, Complainant requests
that the Commission reverse the final order.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
At the outset, the Commission shall address Complainant’s claims that the AJ committed
several procedural errors. To the extent that the AJ denied Complainant’s motions, the
Commission notes that AJs have broad discretion in the conduct of hearings, including
discovery, and the determination of whether to admit evidence, issue sanctions or permit or
compel the testimony of witnesses. See

29 C.F.R. § 1614.109. The record does not reveal
any procedural errors that disadvantaged Complainant’s case. Thus, the Commission finds that
Complainant has failed to establish that the AJ abused his discretion in the manner in which he
managed and adjudicated this case. In addition, the Commission notes again that
Complainant’s reasonable accommodation claim is currently pending before an Administrative
Judge.
Turning to the merits of the instant case, the Commission notes that 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).
Complainant must initially 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). 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. Tx. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
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In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. With respect to her performance appraisal, M1 affirmed that
Complainant’s rating was based on the critical aspects of the performance measures for her
position. ROI, at 287-88. M1 noted that Complainant was not rated deficient in any aspect;
rather, she was rated as “meets” the performance standard of the six aspects of the critical job
elements: Written Communication, Accuracy of Work, Research and Analysis, Planning and
Scheduling, Workload Management, and Time Utilization. Id. at 289. M1 added that
Complainant could have improved her rating by submitting original work that stayed within the
scope of the assignments, completing assignments in a timely fashion, and notifying her
manager when she needed clarification or needed a deadline extension. Id. at 288. In
addition, M1 stated that Complainant could have managed her time better so that her work was
completed and better managed her workload so that employees did not have to cover for her
while she was out on vacation. Id. M1 noted that most of the section had a relatively light
workload as much of their time was devoted to learning a new field; however, he assigned
Complainant work that was no more difficult than that assigned to other employees in the
section. Id. Finally, M1 maintained that all of Complainant’s assignments were based on
topics for which she appeared to have extensive experience and expertise, but on at least two
occasions, she failed to accurately and independently complete assignments. Id

. at 288-89.
As to her claim that management impeded her career advancement, M1 affirmed that
Complainant was not selected to be trained as a Certified Instructor because the Agency was
given a limited number of slots for the class in Fiscal Year 2010, and management ultimately
decided to send two employees who had already received knowledge management certification
and had contributed heavily to the course development. ROI, at 290-91. M1 stated that in
Fiscal Year 2011, the Agency was allotted one slot and decided to send an employee who had
prior relevant education and experience in training. Id. M1 added that Complainant was
approved for and completed 12 training courses for the front-line leadership readiness program
in 2009, and attended numerous training courses in 2010 and 2011. Id. at 291-92. Finally,
M1 stated that temporary details were made competitively and Complainant had the same
opportunity to apply and compete as all other employees. Id. at 292. M1 noted that
Complainant served a 120-day detail in the Human Capital Office as part of her frontline
readiness program training. Id

.
Finally, as to her non-selection, SO maintained that she was seeking a candidate with strong
demonstrated project management skills for the Management and Program Analyst position.
ROI, at 312. SO confirmed that she selected the selectee because she was aware of his
significant experience as a project manager and that he was well-versed in the Microsoft
Project technology and the rigors of effective project management. Id. at 311. SO noted that
Complainant did have program management experience and task force leadership experience;
however, she did not indicate in her application materials familiarity with Microsoft Project or
have the experience in “classic” project management. Id. at 312. As a result, SO chose the
selectee.
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Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As to her non-selection claim, the
Commission notes that Complainant may establish pretext by a showing that her qualifications
are observably superior to those of the selectee. Bauer v. Bailar

, 647 F.2d 1037, 1048 (10th
Cir. 1981). This is simply one method and is not the only way Complainant may establish
pretext as to her non-selection claim.
In this case, the selectee had attributes that justified his selection, and while Complainant’s
qualifications were impressive, SO affirmed that she believed the selectee was better equipped
to meet the Agency’s needs. In the absence of evidence of unlawful discrimination, the
Commission will not second guess the Agency's assessment of the candidates' qualifications.
Tx. Dept. of Cmty. Affairs v. Burdine

, 450 U.S. at 259.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. 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 discriminatory or retaliatory animus. Complainant failed to carry this burden. As
a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding
that Complainant was not subjected to discrimination or reprisal as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination or reprisal occurred.

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.
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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.

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
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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
July 25, 2014