Hana D.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 18, 2016

0120140075 (E.E.O.C. Mar. 18, 2016)

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

Hana D.,1
Complainant,

v.

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

Appeal No. 0120140075

Agency No. IRS-12-0788-F

DECISION

The Commission accepts Complainant’s appeal from the September 16, 2013 final Agency
decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the
Agency’s Wage and Investment Division at the Agency’s campus in Philadelphia,
Pennsylvania. On March 11, 2011, Complainant was detailed to the Document Matching Unit.
On July 30, 2012, Complainant’s second-level supervisor (S1) issued Complainant a
memorandum informing Complainant that a quarterly Integrated Data System Retrieval (IDRS)
Profile Report indicated that she was not following IDRS procedures. The Profile Report
revealed that Complainant was not signing off of the system appropriately because she had 17
inactivity logoffs. The Profile Report noted that Complainant had attempted to access
command codes that were not in her profile 155 times when she first began her detail
assignment, but she subsequently was given access to the codes and she did not attempt to use
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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any other command codes not in her profile. Instead of signing the memorandum,
Complainant wrote “Please rewrite the review.”

On July 18, 2012, Complainant filed a complaint with Treasury Inspector General for Tax
Administration (TIGTA) alleging that her computer was being monitored and someone had
accessed IDRS using her identification number. The TIGTA Special Agent interviewed
Complainant. Complainant told the TIGTA Special Agent that she had evidence to support her
allegations, but refused to provide them. Complainant claimed that she could not provide the
documents because they contained personally identifiable information. TIGTA ultimately
decided not to pursue the investigation and forwarded its report to the Employee Conduct and
Compliance Office.

Complainant’s second-level supervisor (S2) consulted with the Operations Manager (M1)
regarding Complainant’s failure to cooperate with the TIGTA investigation into her complaint.
S2 decided to end Complainant’s detail assignment and returned her to her home unit. In
addition, on August 30, 2012, S2 issued Complainant a written counseling memorandum
stating that her failure to cooperate with a TIGTA investigation was a violation of the
employee code of conduct.

On October 30, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the basis of national origin (Chinese/American) when:

1. On July 30, 2012, while on detail, Complainant was given a security review by
management and was falsely accused of not following the Integrated Data System
Retrieval (IDRS) procedures;

2. On August 16, 2012, while on detail, Complainant was told by management that
due to the inappropriate IDRS review, she needed to return to her home unit; and
she returned to her home unit on August 20, 2012; and

3. On August 30, 2012, she received a Letter of Admonishment from management
falsely accusing her of failing to cooperate with a Treasury Inspector General for
Tax Administration (TIGTA) investigation by refusing to provide requested
documentation.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to claim (1), S1 explained that a total of six of her 16 employees

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were advised they had more than 15 inactivity sign-offs and just a few were advised they were
accessing command codes not in their profiles. The security review for Complainant pointed
out she was not signing off of the IDRS appropriately, and had 17 inactivity sign-offs.
However, with respect to use of command codes, the security review stated that Complainant
was using command codes properly. While the other part of the description appears critical of
Complainant’s actions regarding the codes, the overall assessment seemed to be that
Complainant was performing as required.

Regarding claim (2), S2 denied that Complainant was told to return to her home unit because
of the IDRS review. S2 affirmed that Complainant was informed that she was being sent back
to her home unit because she had failed to cooperate with a TIGTA investigation that she
herself had initiated.

Finally, with regard to claim (3), S2 stated that after consulting with Labor Relations, she
issued the memorandum based on the TIGTA Special Agent’s findings. The Labor Relations
Specialist acknowledged that she advised S2 to consider giving Complainant a written
counseling memorandum on this matter.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretext for unlawful discrimination. As a result, the Agency found that
Complainant had not been subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S2 treated her less favorably than other employees in the
same unit. Complainant claims that she is blamed for everything that goes wrong and that she
has followed Agency procedures. Complainant disputes that she did not cooperate with the
TIGTA investigation. Complainant argues that the Agency discriminated against her by
issuing her the written counseling and sending her back to her home unit. Accordingly,
Complainant requests that the Commission reverse the FAD.2

ANALYSIS AND FINDINGS

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.
2 Throughout her appeal, Complainant refers to the FAD as the Agency’s final order following
a hearing before an Administrative Judge. The Commission notes that Complainant was given
the opportunity to request a hearing; however, she instead requested a FAD. Additionally,
Complainant does not challenge the Agency’s issuance of the FAD.

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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).

Assuming arguendo that Complainant established a prima facie case of discrimination, record
evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, regarding claim (1), S1 affirmed that she issued a quarterly IDRS review
based on the reports and used a standard template to advise all of her employees about their
inactivity sign-offs and command codes access. ROI, at 66. The report indicated that
Complainant had 17 inactivity sign-offs. Id. at 30. S1 confirmed that five other employees
were advised of having more than 15 inactivity sign-offs. Id. at 68. While the review did state
that Complainant had 155 access attempts to command codes not in her profile, the review
noted that Complainant was using the command codes properly and that she was later given
access to the command codes as part of her detail assignment. Id. at 30. S2 added that IDRS
reviews were not conducted as accusations of not following IDRS procedures, but to give
feedback on performance to all employees. Id. at 72.

Finally, with respect to claims (2) and (3), S2 maintained that Complainant was returned to her
home unit based on her failure to cooperate with the TIGTA investigation that she initiated.
ROI, at 72. S2 stated that she arrived at this decision after consulting with M1. Id. Further,
S2 stated that she issued the written counseling on the recommendation of the Labor Relations
Specialist based on Complainant’s failure to cooperate with the TIGTA investigation by not
providing the requested documents in support of her allegations. Id. at 73, 84.

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 Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record lacks evidence that the Agency’s actions were based on
discriminatory animus. 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 discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that she
was subjected to discrimination as alleged.

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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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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”

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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

March 18, 2016
Date