Karma S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Aug 22, 2019

2019000411 (E.E.O.C. Aug. 22, 2019)

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

Karma S.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 2019000411

Hearing No. 570-2017-00880X

Agency No. IRS-16-0723-F

DECISION

On October 5, 2018, 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
September 20, 2018 final order concerning 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.

BACKGROUND

During the period at issue Complainant worked for the Agency as a Supervisory Internal
Revenue Agent, IR-0512-4 in Washington, D.C.

On November 15, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on national origin (West Indian) and in reprisal for prior
protected EEO activity when, on August 25, 2016, she was issued a letter of admonishment.2

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.

2 The letter of admonishment was later reduced to a letter of counseling at a time when
Complainant was out of the office on various forms of leave. The record further indicates that
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The evidence developed during the Agency’s investigation into the complaint reflects that
Complainant’s supervisor issued Complainant the letter of admonishment on August 25, 2016 in
response to an interaction between Complainant and an employee under Complainant’s
supervision. According to the admonishment letter, Complainant denied the employee’s request
to speak with Complainant after the employee was charged annual leave but had worked a full
day. The record indicates that despite the employee’s repeated requests to correct his time, as
well as presenting her with supporting documentation, Complainant continued to deny his
requests without conducting a review or holding a discussion with the employee.

The letter further asserts that Complainant required this same employee to immediately report to
her office on a Friday afternoon to discuss her purported concern with one of his assigned cases.
Complainant denied the employee’s request to postpone the meeting until the following week.
When the employee reported to Complainant’s office as directed, Complainant did not review
the assigned case or discuss the concern. The employee reported that he felt bullied by
Complainant and that his time was not respected. The admonishment letter determined that
Complainant’s failure to communicate effectively with the employee or consider reasonable
requests from the employee was disrespectful and unprofessional. The letter also considered a
written counseling letter issued to Complainant on October 20, 2016, for similar unprofessional
conduct.

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing.
Over Complainant's objections, the AJ issued a decision by summary judgment in favor of the
Agency on September 10, 2018. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

This appeal followed.

STANDARD OF REVIEW

In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions,
and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency's final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's

Complainant did not return to the office before retiring from the Agency. Consequently, the
letter of counseling was never issued.

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determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual
conclusions and legal analysis -- including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's own assessment of the record
and its interpretation of the law”).

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 order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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For a complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. See McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once an agency
has met its burden, a complainant bears the ultimate responsibility to persuade the fact finder by
a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services,
EEOC Request No. 05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition
No. 03900056 (May 31, 1990).

The AJ determined that the record contained testimonial and documentary evidence of a non-
discriminatory motivation for issuance of the letter of admonishment in this matter. Specifically,
the record indicates that Complainant’s supervisor received a complaint of harassment from one
of Complainant’s employees. After hearing from the employee and conducting her own
investigation into the alleged incidents, Complainant’s supervisor issued the letter of
admonishment out of concern for Complainant’s treatment of her employee. Moreover, the AJ
determined that Complainant failed to identify similar situated individuals outside her protected
classes who were treated more favorably after engaging in similar conduct.

In sum, we find that, even assuming all facts in favor of Complainant, a reasonable fact-finder
could not find in her favor. Therefore, we find that the AJ properly issued a decision without a
hearing finding that no discrimination occurred.

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 AJ's issuance of a decision without a hearing was appropriate,
and a preponderance of the record evidence does not establish that discrimination or reprisal
occurred.

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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. 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.
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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

August 22, 2019
Date