[Redacted], Charlie O, 1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2020004779 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlie O,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020004779 Agency No. IRS-19-1203-F DECISION On August 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 16, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a full-time seasonal Contact Service Representative (CSR) at the Agency’s Wage and Investment Service Centers (WISC), Memphis Accounts Management, in Franklin, Tennessee. On September 20, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (Native American-Cherokee), sex (male), color (medium colored), disability,2 age (over 40), and in reprisal for prior EEO activity when his 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 Complainant identified his disabilities as degenerative spinal condition and hand reconstruction. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2020004779 2 manager improperly charged him with an error, engaged in a pattern of screaming at him and accusing him of being “idle” often in a manner that others could hear, and beginning April 15, 2019, charged him Absent Without Leave (AWOL) on many dates. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its April 16, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant, on appeal, argues that he was ill and was unable to submit a brief. In response, the Agency contends that after filing the instant appeal, Complainant requested two extensions of time to submit his brief in support of his appeal but has yet to file anything.3 ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. 3 Any statement or brief on behalf of a complainant in support of an appeal must be submitted to the Commission within 30 days of filing the notice of appeal. 29 C.F.R. 1614.403(d). “When a complainant claims that a physical condition prevents him from meeting a particular filing deadline…the complainant must be so incapacitated by the condition as to render him physical unable to make a timely filing.” Alfredo S. v. Social Security Administrative, Appeal No. 0120152099 (Aug. 23, 2016) (citing Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989)). We discern no evidence supporting Complainant’s assertion that his inability to timely file a brief was due to such incapacitation during the relevant time period. 2020004779 3 Where, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management official articulated legitimate, non- discriminatory reasons for the disputed actions. The WISC supervisor was Complainant’s manager and the WISC Department Manager was Complainant’s second-level manager. Regarding Complainant’s claim that his manager improperly charged him with an error on April 12, 2019, Complainant’s manager (black, female) noted that Complainant was charged a “909 Inappropriate Use of Wrap” error by the CER. She explained that the CER group is a group of employees which listens to and reviews employee calls, and that each person in the group is assigned a number as to not identify employees by name. The manager further noted that Complainant disagreed with the error and she met with Complainant and his union representative. During their meeting, the manager explained that there was a process that managers must follow to request errors be removed from CER calls. She asserted Complainant and his representative that she would submit a reconsideration to have the error removed. The record reflects that the CER group agreed to remove the error. Regarding Complainant’s claim that the manager engaged in a pattern of screaming at him and accusing him of being “idle” often in a manner that others could hear, the manager denied it. Specifically, the manager asserted that she has never screamed at any employee. She further stated that “idle” is a phone status when an employee is not taking phone calls. For instance, the manager stated that on April 15, 2019, she went to Complainant’s desk and “politely asked him [if] was he on a call. The system was not recording phone time correctly. As a manager I am required to monitor employee’s phone activity. I was able to determine the complainant was on a call and I went back to my desk.” Regarding Complainant’s claim that beginning April 15, 2019, charged him AWOL on many dates, the manager noted that the AWOL charges from April 15, 2019 to April 26, 2019 have been changed to Leave Without Pay (LWOP). She further stated that Complainant was charged AWOL “from April 29, 2019 to the current date.” Once the responsible Agency official have articulated legitimate, non-discriminatory reasons for the disputed actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that these reasons are pretext for discrimination. 2020004779 4 Here, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, sex, color, disability, age or prior EEO activity. Moreover, a case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020004779 5 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). 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 January 6, 2021 Date