[Redacted], Deangelo C., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2020004305 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deangelo C.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020004305 Hearing Nos. 570-2018-00326X 480-2019-00474X Agency Nos. IRS-17-0445-F IRS-19-0027-F DECISION 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 June 17, 2020, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. During the relevant time, Complainant worked as a Senior Labor Relations Specialist (GS-14) at the Agency’s Human Capital Office, Workforce Relations Division, Labor Relations Strategy and Negotiations Branch in Long Beach, California. On June 16, 2017, Complainant filed an EEO complaint (Agency Complaint No. IRS-17-0445-F) alleging that the Agency subjected him to harassment on the bases of race (Caucasian), sex (male), and age (75). In support, he identified six incidents of alleged harassment. 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 2020004305 For example, Complainant claimed that since September 16, 2016, when he was not selected for a Human Resources Specialist (GS-15) position, he has been precluded from all promotional opportunities within his division and been targeted for removal.2 The allegedly harassing conduct also included: receiving an evaluation of “Met” in his 2016 performance appraisal; being required pay his own travel expenses for meetings in Washington, D.C., after he was granted a “convenience move” to California; and having to take training courses on cultural competence, diplomacy and tact. On November 9, 2018, Complainant filed another EEO complainant (Agency Complaint No. IRS- 19-0027) alleging discrimination based on age, race, and sex, and in reprisal for prior protected activity, when: 1. on September 20, 2018, management issued Complainant a Letter of Reprimand (LOR); and 2. on October 16, 2018, Complainant received an overall rating of “Met” on his annual performance appraisal for fiscal year 2018 (FY18). At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings, and on April 5, 2019 filed an unopposed motion to have the cases joined. On May 14, 2019, Complainant filed a motion to sanction the Agency and compel discovery. The AJ denied Complainant’s motion, on August 7, 2019, finding that the Agency’s responses to Complainant’s motion were well-founded and legally sound. The AJ noted that Complainant’s discovery requests were overly broad and oftentimes unclear. 2 Complainant identified two September 2016 vacancy announcements regarding his allegation of being denied “all promotional opportunities”, one internal and one external announcement for multiple Human Resources Specialist openings. Complainant averred that he first learned of his non-selection on September 28, 2016, and that on January 25, 2017, he learned of a selectee for the external vacancy announcement. Complainant Interrogatories at 2. Allegations of harassment or the existence of a hostile work environment involve a series of incidents linked by a pattern of conduct. This is contrasted with claims involving discrete acts, such as a promotion or termination which are clearly defined. In those instances, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Untimely discrete acts may, however, be used as evidence in support of a timely claim of harassment. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). In this case, Complainant’s non-selections were not timely raised when he initiated EEO counseling on March 29, 2017. Moreover, they were raised by Complainant, and accepted by the Agency, only as part of the harassment claim. Therefore, we shall only consider the non-selections within the harassment framework. 3 2020004305 Over Complainant’s objections, the AJ assigned to the cases3 granted the Agency’s September 23, 2019, motion for a decision without a hearing and issued a joint decision without a hearing on May 8, 2020. As an initial matter, the AJ found that the Agency’s Motion for Summary Judgment accurately identified the issues and facts of this case, and it established no genuine issues of material fact. The AJ determined that Complainant could not rebut the Agency’s articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant’s non-selection, the AJ stated that Complainant did not provide evidence to show that his qualifications were plainly superior or that the Agency’s reasons were pretextual. In addition, the AJ found that Complainant did not provide evidence to show that bias entered into the decision-making process, and that his generalized assertion of discrimination was insufficient to establish pretext. The AJ also determined that Complainant could not rebut the Agency’s reason for the LOR; namely, repeated complaints about his unprofessional behavior. The AJ found that the remainder of the incidents comprising Complainant’s overall allegation of harassment were not sufficiently severe or pervasive, and that the record was devoid of evidence of discriminatory or retaliatory animus. The AJ concluded, after a review of the evidence in the light most favorable to Complainant, that summary judgment in favor of the Agency was appropriate. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 he must further establish that such facts are material under applicable law. 3 On July 19, 2019, the AJ issued an order of reassignment so that the cases would be processed jointly. 4 2020004305 Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. As an initial matter, Complainant argues that the AJ improperly denied his motion to compel discovery and issue sanctions against the Agency. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). On appeal, Complainant simply disagrees with the AJ’s denial, but he presented no response to her assessment that his requests were overly broad and oftentimes unclear. As such, we find that Complainant failed to establish that the AJ abused her discretion when she denied his motion or erred when she did no make his requested adverse inferences. Complainant asserts that there are genuine disputes of material facts and/or credibility issues that the AJ “chose to overlook,” such as the absence of any legitimate business justifications for passing him over on the September 2016 internal and external promotion announcements. However, the AJ noted, it was undisputed that the internal selectee had relevant management and leadership experience in the Labor Relations field. Further, the Agency was not obligated to weigh relevant factors in a manner that was beneficial to Complainant or give greater weight to a narrow field. As previously noted, Complainant’s non-selection claims are untimely discrete claims and therefore, only considered as part of his harassment claim. We agree with the AJ, that the record does not reveal any evidence to show that bias entered into the decision-making process. Regarding the reprimand, Complainant asserts that the Team Lead sent an email, on August 30, 2018, which contradicted her September 4, 2018 memo that was used as justification for the LOR. But, a review of the record shows no such contradiction. The August email noted that Complainant raised his voice and was aggressive, irate, and belligerent during the meeting. To compare, the September memo stated that Complainant was belligerent, highly irritated, angry, and argumentative. Report of Investigation 2 at 347-8, Agency Motion for Summary Judgment Exhibit A4. Complainant also argues that the Agency relied upon the Associate Director’s statement concerning a telephone call, which was contradicted by notes from a neutral witness. However, the Associate Director specifically described Complainant’s tone changing after this witness left the call, noting that he became “more aggressive.” Agency Motion for Summary Judgment Exhibit A4. Accordingly, we do not find that Complainant has shown a genuine dispute of material facts. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. We find that the AJ properly determined that Complainant provided no evidence to show a connection between any of the Agency’s actions and his protected categories. 5 2020004305 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that the Agency subjected Complainant to discrimination or harassment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 6 2020004305 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 February 9, 2022 Date