Micheline L.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Nov 8, 2018

0120172830 (E.E.O.C. Nov. 8, 2018)

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

Micheline L.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120172830

Agency No. IRS160375F

DECISION

On August 16, 2017, 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
July 19, 2017, final decision 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a senior Individual
Taxpayer Advisory Specialist (ITAS), GS-0501-11 at the Agency’s IRS’s Wage and Investment
Division Tax Advisory Center (TAC) facility in Huntsville, Alabama. On February 23, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American), sex (female), color (black), and age (56) when:

A. On February 23, 2016, Complainant received a rating of 4.8 on her annual
performance appraisal;

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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B. On more than one occasion, most recently on May 9, 2016, she was referred to
as a “flunky acting manager;” and
C. Complainant was not assigned duties commensurate with her position as a team
leader.

After 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 requested a hearing but subsequently
withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

Specifically, the Agency found that, with respect to Claims A and C, Complainant failed to provide
any evidence that her annual evaluation or assignments were issued based on discrimination.
Regarding the rating, the Agency noted that Complainant’s first level supervisor (S1) was her
rating official on her February 2016 annual performance evaluation. Complainant’s second level
supervisor (S2) was the reviewing official.

On February 23, 2016, S1 gave Complainant an annual evaluation rating her overall performance
as “Outstanding” with an average Critical Job Element (CJE) rating of 4.8 out of 5.0. The
“Outstanding” rating was based on four CJEs. Complainant received an “exceeds fully successful”
rating in Customer Satisfaction - knowledge. The Customer Satisfaction – Knowledge CJE is made
up of three performance aspects: A. Tax Law; B. General Knowledge; and C. Research Tools. S1
rated Complainant as “meets expectations” on aspect A and as “exceeded” on B and C.

S1 explained that she gave Complainant a meets expectation rating on aspect A because she
analyzed all seven contacts which included tax law and concluded that five out of the seven
contacts (71 percent) resulted in the customer receiving accurate assistance. S1 stated that the 71
percent fit the “generally” accurate category, and she noted the “exceeds” rating would have been
given only if accurate assistance occurred on a more consistent basis. As a result, she rated
Complainant as “meets” on A, resulting in an overall rating of 4.8. S2 concurred with the rating.

Although Complainant argued that S1 treated a younger, White female coworker (CW1) more
favorably by monitoring CW1’s work more frequently to help her achieve a higher rating, the
Agency found S1’s explanation that CW1 was a seasonal employee who worked only six months
per year and implicitly required more attention was legitimate and nondiscriminatory. Further, the
Agency found that the Agency’s treatment of CW1 did not substantiate Complainant’s disparate
treatment claim since CW1 received a lower overall rating of “exceeds fully successful” and 4.2
in contrast to Complainant’s “Outstanding” and 4.8 rating.

Next, with respect to Claim C, the Agency found that Complainant’s assignments were not
discriminatory. Complainant alleged that she was not given any actual acting manager duties when
she served as an acting manager in S1’s absence.
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Specifically, she stated that she was not asked: to perform duties related to scanning or verifying
payments; to serve as a referral or to coordinate referral of taxpayer inquiry forms (Form 4442);
to complete data collection instruments or to input information in the EQRS; to conduct non-
evaluative Embedded Quality Reviews (EQRs); or to provide coworkers with assistance on
complex matters. She stated, however, that a 60-year old White female coworker (CW3) who was
also a senior ITAS was assigned some of these duties. The Agency noted S1’s statement that as a
senior ITAS, Complainant’s primary duties were to assist customers who come into the taxpayer
center for face-to-face assistance, and to serve as an on the job instructor and resource for others
in the group on an as needed basis. S1 further stated that when Complainant served as the acting
front line manager, her duties included the full range of responsibilities performed by the manager
on an as needed basis and that many of the tasks mentioned by Complainant are not duties related
to being a manager, but instead were performed by the group secretary until she retired in July
2015. S1 added that with respect to collecting data and inputting it into EQRS, S1 herself had not
been requested to do that as a manager and, contrary to her allegation, Complainant had done key
verifying payments. Finally, the Agency considered S1’s statement that while CW3 had time to
perform other tasks because she worked in a in a different, smaller TAC, with shorter hours for
customers, Complainant also was given additional opportunities that CW3 did not have such as
the opportunity to attend Classroom Instructor Training or be an instructor for a class. Overall, the
Agency found that each senior ITAS performed duties as needed based on the office where he or
she worked, and that this was a legitimate, nondiscriminatory reason for any different treatment
between the ITASpecialists that Complainant failed to prove was a pretext for discrimination.

Lastly, regarding Claim B, the Agency noted that Complainant stated that on three separate
occasions, most recently on or about May 9, 2016, CW2 called her a “flunky acting manager.” The
Agency observed that, although Complainant objected to the moniker and informed CW2 and S1
of her objections, Complainant stated that she did not believe her age, race, color, or sex were
factors in CW2 calling her a ‘flunky acting manager,” but rather that she called Complainant by
this name because she lacked authority. Accordingly, the Agency concluded that, based on
Complainant’s own admission, Complainant’s age, race, color, or sex were not motivating factors
when her coworker made comments about her being a “flunky” manager.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

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Here, beyond conclusory allegations that Complainant’s first-level supervisor does not like Black
females and favors the White employees on her team, Complainant has failed to provide any
evidence that the supervisor’s actions were motivated by unlawful discrimination. With respect to
her rating under Claim A, Complainant failed to prove disparate treatment failed since CW1
received a lower evaluation than Complainant. Similarly, Complainant offered no evidence to
refute S1’s explanation that Complainant and other senior ITASpecialists were assigned tasks on
an as needed basis and that Complainant actually had an opportunity to perform some of the
managerial tasks she cited. Lastly, by Complainant’s own admission, there was no discriminatory
motive compelling CW2 to call Complainant a “flunky” manager. Moreover, Complainant offered
no evidence establishing that these incidents were sufficiently severe or pervasive to substantiate
a hostile work environment claim. Therefore, we find that the Agency’s decision finding no
discrimination was proper.

CONCLUSION

We AFFIRM the Agency’s finding of no discrimination.

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.
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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 (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

November 8, 2018
Date