[Redacted], Charles L. Burgett, 1 Complainant,v.Janet Yellen, Secretary, Department of the Treasury (Financial Management Service), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020000048 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles L. Burgett,1 Complainant, v. Janet Yellen, Secretary, Department of the Treasury (Financial Management Service), Agency. Appeal No. 2020000048 Agency No. IRS-19-0012-F DECISION On August 20, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 18, 2019 final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant proved, by a preponderance of the evidence, that the agency’s reasons for his non-selections for Contact Representative positions under two vacancy announcements were pretexts for race, sex, and/or reprisal discrimination? 1 This case has been not been assigned a pseudonym per the direct request of Complainant. Complainant requested to use his name in lieu of a pseudonym. 2020000048 2 BACKGROUND Complainant previously worked with the Agency as a Tax Examining Technician, GS-4, at the Agency’s Kansas City Missouri Service Center facility in Kansas City, Missouri, in 2012. Complainant was discharged for poor performance and has continued to apply for positions at the Agency, without success. In 2018, Complainant again applied for Contact Representative positions with the Agency. On October 2, 2018, Complainant was not selected for a Contact Representative position under Vacancy Announcement Number 18CS3-WIX0102-0962-05-FM. On October 3, 2018, Complainant learned he was not selected for a Contact Representative position under Vacancy Announcement Number 18CS-3-WIX0104-0962-05-TS. On November 2, 2018, Complainant filed a formal complaint alleging that he was discriminated against based on his race, sex (African male) and in reprisal for prior EEO activity, when: 1. On October 2, 2018, Complainant was not selected for a Contact Representative position under Vacancy Announcement Number 18CS3-WIX0102-0962-05-FM, and 2. On October 3, 2018, Complainant learned he was not selected for a Contract Representative position under Vacancy Announcement Number 18CS-3-WIX0104- 0962-05-TS. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After Complainant withdrew his hearing request, , 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 him to discrimination as alleged. ANALYSIS AND FINDINGS Standard of Review 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”). 2020000048 3 We consider Complainant's non-selection claims in accordance with the U.S. Supreme Court's three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie case by demonstrating he was subjected to an adverse employment action under circumstances that would support his inferences of discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate, nondiscriminatory reason for its actions, then our inquiry proceeds to the third step--whether Complainant has shown by a preponderance of evidence that the Agency's reasons were pretexts to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We assume, arguendo, that Complainant established a prima facie case on the raised bases of race, sex and reprisal. Nevertheless, we concur with the Agency's final decision because it has articulated a nondiscriminatory motive for the subject non-selection. Specifically, the Agency explained that, although Complainant scored among the best-qualified applicants, the Selecting Official declined to select Complainant because he had been flagged in the Agency's Automated Labor/Employee Tracking System (ALERTS). The record included Complainant's SF-50, which documented that, effective May 12, 2012, the Agency had terminated Complainant from his prior probationary position as a tax examining technician for reasons of unacceptable performance. The Agency's new-hire program manager (African American, female, EEO activity unknown) explained that all 62 of the selectees, like Complainant, had also been deemed best qualified. Moreover, the Agency documented that twelve other best qualified applicants were flagged in ALERTS for histories of misconduct or performance problems during prior employment with the Agency. The HR manager who had reviewed the applications (male, Caucasian, EEO activity unknown) stated that none of the applicants who were flagged in ALERTS were referred to the Selecting Official. Furthermore, Complainant failed to evidence his qualifications were plainly superior to those of the applicants the Agency selected. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant asserted that the Agency should have provided better demographic and EEO comparator information in support of its decision. Complainant's self-serving statement that he had “common knowledge” of “the Agency's pattern and practice of discrimination and retaliation” is insufficient to prove that the Agency's stated reasons for his non-selection were pretextual. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the Agency’s final decision and its finding that Complainant was unable to prove, to a preponderance of evidence, that discrimination occurred as alleged. 2020000048 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000048 5 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 February 9, 2021 Date