Deborah Wilson, Appellant,v.Robert E. Rubin Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01974030 (E.E.O.C. Sep. 2, 1999)

01974030

09-02-1999

Deborah Wilson, Appellant, v. Robert E. Rubin Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Deborah Wilson v. Department of the Treasury

01974030

September 2, 1999

Deborah Wilson, )

Appellant, )

) Appeal No. 01974030

v. ) Agency No. 96-4007

) Hearing No. 280-96-4238X

Robert E. Rubin ) 280-96-4239X

Secretary, ) 280-96-4240X

Department of the Treasury, ) 280-96-4241X

(Internal Revenue Service), )

Agency. )

______________________________)

DECISION

On April 19, 1997, Deborah Wilson (appellant) timely appealed the final

decision of the Internal Revenue Service (agency), which was received

on March 23, 1997, concluding she had not been discriminated against

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act

(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In her complaint,

appellant alleges, inter alia, that she was discriminated against on the

bases of sex (female), age (D.O.B. 11/16/52), race (Native American),

religion (Agnostic) and retaliation (prior EEO activity) when she was

assigned higher-graded duties (GS-10 level duties) without commensurate

compensation during the period December, 1994 through March, 1995.<1>

The appeal is accepted by the Commission in accordance with EEOC Order

No. 960.001.

The record reflects the following: Appellant has worked for the agency

since February, 1978. Between 1989-1994, appellant worked in the

Adjustments Branch as a tax examiner. Appellant filed her first EEO

complaint in 1991. In 1992, appellant filed several EEO complaints that

were ultimately settled in 1994. As part of the settlement agreement,

the agency agreed to promote appellant from the GS-07 grade level

to the position of Employee Development Specialist, GS-235-09 in the

Training and Development Branch, which was renamed in October, 1994

as the Education Branch. Appellant was assigned to the Design and

Media Section. Shortly after being promoted, appellant was given a

course development job which entailed updating the On-The-Job Instructor

Training Manual. Appellant testified that the old manual was outdated

and completely inadequate. As a result, appellant testified that she

had to conduct extensive research via surveys and interviews in order to

gather the current, valuable information for the On-The-Job Instructors.

Appellant testified that she believed the work she was performing

constituted GS-10 grade level work. Appellant further testified that

the other course developers were temporarily promoted while performing

course development work. Appellant requested a temporary promotion

to the GS-10 grade to do the On-The-Job Instructor Training project.

However, the agency denied her temporary promotion.

On October 11, 1995, appellant filed a formal EEO complaint with the

agency, alleging that the agency had discriminated against her as

referenced above. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested an administrative hearing before an Equal Employment Opportunity

Commission (EEOC) administrative judge (AJ). A hearing was conducted

on January 29, 1997. Thereafter, the AJ issued a recommended decision

finding no discrimination.

The AJ determined that appellant failed to establish a prima facie case

of discrimination on all alleged bases because she failed to identify any

similarly situated employee outside her protected classes who were treated

more favorably. However, assuming, arguendo, that a prima facie case

was established, the AJ noted that the agency articulated a legitimate,

non-discriminatory basis for the failure to temporarily promote appellant.

In addition, the appellant failed to establish pretext or discriminatory

motive on the part of the agency.

Specifically, the AJ noted that the Chief of the Education Branch (S2)

testified that appellant's work as the head of the On-The-Job Instructor

Training Manual project did not warrant temporary promotion to the GS-10

grade level. S2 testified, inter alia, that appellant's project was

much less complex than the course development projects that had merited

temporary promotions. Moreover, both S1 and S2 testified that the duties

appellant was performing were consistent with her GS-09 grade level.

S2 further testified that appellant was new to the Education Branch and

the project she was given was a developmental project aimed at training

and enhancing her employment experience. According to S2, appellant was

to receive extensive supervision from senior staff. S2 also testified

that appellant's project spanned two months as opposed to six months or

longer for more complex projects.

The AJ also determined that appellant failed to prove pretext or that

the agency acted with discriminatory motives. While the appellant

testified that she did not receive any supervision, nothing in the record

refutes the contention that S1 and S2 did not know that appellant was not

receiving the necessary supervision. The AJ noted that appellant herself

admitted that she did not complain to anyone that she was receiving

inadequate supervision, or that she was having problems with the project.

The AJ determined that regardless of the supervision, or lack thereof, the

evidence showed that S1 and S2 believed appellant was receiving guidance

in accordance with their instructions to the senior staff. In addition,

the AJ stated that regardless of the amount of supervision that appellant

received on the project, according to S1 and S2, the nature and level of

the project itself did not warrant a temporary promotion for appellant.

Since appellant failed to present any additional relevant evidence which

supported a finding of pretext or discriminatory animus, the AJ found

that appellant did not prove discrimination on any bases alleged.

On March 19, 1997, the agency adopted the findings and conclusions of

the AJ and issued a final decision finding no discrimination. It is

from this decision that appellant now appeals.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that the AJ's recommended decision properly analyzed appellant's complaint

as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56

(1981); Loeb v. Textron, Inc., 660 F.2d 1003 (1st Cir. 1979); Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D.Mass), aff'd, 545 F.2d 222 (1st Cir. 1976). The Commission concludes

that, in all material respects, the AJ accurately set forth the relevant

facts and properly analyzed the case using the appropriate regulations,

policies, and laws. Based on the evidence of record, the Commission

discerns no basis to disturb the AJ's findings of no discrimination.

We find appellant's contentions on appeal to be without merit. For

example, appellant contends that the AJ erred in excluding the testimony

of one witness (W1) who appellant contends would have shown that she did

not receive any supervision with respect to the On-The-Job Instructor

Training project. However, as indicated above, the AJ determined that

even if appellant was not supervised, there was no evidence presented

by appellant which indicated that her supervisors were aware of it.

The AJ assumed that appellant was not supervised when recommending

a finding of no discrimination. Accordingly, we agree with the AJ's

determination that W1's testimony was not necessary, and accordingly,

do not find any error in excluding this witness from the hearing.

In addition, appellant argues that the AJ erred in disallowing testimony

related to more favorable treatment given to an employee (white, male)

(W2) who was hired as a Visual Information Specialist. The AJ explained

at the hearing that testimony regarding W2 was irrelevant essentially

because W2 was in a different job category, W2 did not compete with the

appellant for any vacancies, and W2's work did not have any bearing on

appellant's work product. After careful review of the entire record,

we agree with the AJ and find that W2 was not similarly situated to

appellant. Accordingly, evidence regarding more favorable treatment is

not relevant and was properly excluded by the AJ.

As appellant has offered no additional persuasive evidence in support

of her claim on appeal, we discern no legal basis to reverse the AJ's

finding of no discrimination. Accordingly, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

decision finding no discrimination.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

9/2/99

_______________ _______________________________

DATE Carlton Hadden, Acting Director

1Appellant raised three additional allegations of discrimination in her

complaint. However, since she does not contest the agency's final decision

with respect to those issues, they shall not be addressed herein.