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

Equal Employment Opportunity Commission

Nov 16, 2021

Appeal No. 2020004157 (E.E.O.C. Nov. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deshawn S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020004157 Agency No. IRS-19-1455-F DECISION On July 13, 2020, 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 June 16, 2020, final agency decision (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, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Representative, GS-0962-05, at the Agency’s Wage and Investment (W&I) Service Center in Jacksonville, Florida. He was appointed to the Agency on October 29, 2018, subject to a one- year probationary period. See Report of Investigation (ROI) at 122. In the Spring of 2019, Complainant’s grandfather fell ill. Complainant travelled to Jamaica in May 2019, to visit his grandfather. ROI at 89. While in Jamaica, Complainant’s grandfather was involved in a motor vehicle accident and, subsequently, succumbed to his injuries. Id. Due to his grandfather’s death, Complainant was forced to stay longer in Jamaica than originally planned and could not return to work as scheduled on May 28, 2019. Id. 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. 2020004157 2 Complainant’s supervisor (Supervisor) verbally advised Complainant to file a leave request should he need leave; however, Complainant failed to report to work, file a leave request, or call in his absence on May 28-29, 2019. Id. at 00090. As a result of Complainant’s failure, the Supervisor marked him as absent without leave (AWOL) for that period. Id. The following month, from June 1, 2019 to June 7, 2019, Complainant failed to report to work, allegedly because he was incapacitated due to “an unspecified form of anemia.” ROI at 67. Complainant stated that he called in sick each day, except for June 5, 2019. Due to Complainant’s failure to either report to work, call in sick, or respond to a telephone inquiry from management, the Supervisor marked Complainant as AWOL. Id. at 79. Complainant maintained that he subsequently provided medical documentation to the Supervisor to prove that he was absent due to medical reasons; however, the Supervisor allegedly told him that it was too late to change the AWOL charge for June 5, 2019, and refused to reconsider his decision to mark Complainant as AWOL. Id. at 33 and 67. The Supervisor, however, vehemently denied that such conversation took place. Id. at 45. Furthermore, the Supervisor emphasized that Complainant never provided medical documentation substantiating his absence on June 5, 2019. Id. In July 2019, Complainant filed a request to take annual leave on July 19, 2019. ROI at 00129. However, the Supervisor disapproved the request due to Complainant’s insufficient leave balance and expressly directed Complainant to not take leave on July 19, 2019. Id. at 129-130. Despite the Supervisor’s expressed directive, Complainant failed to show up to work on that date. Id. When the Supervisor attempted to call Complainant twice to inquire about his status, Complainant did not answer the telephone because he was allegedly ill. Id. As a result of Complainant’s non-response, the Supervisor marked Complainant as AWOL. Id. On July 22, 2019, the Supervisor issued Complainant a memorandum dated July 19, 2019,2 advising Complainant that his annual and sick leave balances were extremely low. ROI at 133- 134. In the memorandum, the Supervisor advised Complainant of his options for requesting leave in the future to include requesting: advanced annual and/or sick leave; leave under the Family and Medical Leave Act; bereavement leave; leave without pay; or using the leave bank. Id. The record shows that Complainant also requested leave for July 25-26, 2019, to attend a funeral. ROI at 129. The Supervisor granted Complainant leave for this period. Id. By August 2019, Complainant had accrued a total of 32 hours in AWOL status. Id. at 96. 2 The record also shows that the Agency issued Complainant a similar low leave balance memorandum on March 29, 2019 and June 10, 2019, which Complainant characterized as letters of counseling. ROI at 5-6. However, we note that these memoranda are not contained in the record. ROI at 37. 2020004157 3 The Operations Manager ultimately made the decision to remove Complainant from federal service. ROI at 95.3 On August 13, 2019, approximately two months prior to the end of Complainant probationary period, the Acting Operations Manager effectuated the Operations Manager’s decision to remove Complainant based on Complainant’s poor attendance record. Complainant vehemently opposed his removal on the grounds that he was never counseled or issued any disciplinary action prior to being removed and had adequate leave balances. Id. at 34. Complainant further maintained that he was “anecdotally aware” that management treated him differently than “similarly situated employees of a different race or skin color both in the outcome and in the consideration of the granting of leave within the workgroup.” Id. at 57-61. On October 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (black) when: 1) he was charged with AWOL; and 2) then terminated, effective August 13, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew his request. On June 16, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In finding no discrimination, the Agency determined that Complainant’s chain of command had legitimate, nondiscriminatory reasons for marking Complainant as AWOL, as Complainant failed to report to work on the alleged dates, did not call in sick, or respond to management’s inquiries. The Agency further determined that these failures ultimately resulted in Complainant’s removal. While the Agency considered Complainant’s anecdotal evidence of pretext, the Agency ultimately found such evidence to be unpersuasive. Consequently, the Agency concluded that Complainant could not prevail on his complaint. This appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency filed contentions on appeal. 3 We note that the Operations Manager stated that she proposed Complainant’s removal. ROI at 95. Having reviewed the record, including Complainant’s affidavit, it appears that the Operations Manager used the word, “proposed,” in the colloquial sense, as there was no deciding official who made the ultimate decision. See Complainant’s Affidavit contained in ROI at 54. 2020004157 4 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”). ANALYSIS AND FINDINGS For Complainant to prevail on his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As discussed above, the Supervisor maintained that he marked Complainant as AWOL on May 28-29, June 5, and July 19, 2019, because Complainant failed to report to work, did not call in sick, or respond to inquiries from management. ROI at 78-85. The Supervisor added that he issued Complainant a memorandum regarding Complainant’s low leave balance to advise Complainant of his options. Id. As for Complainant’s removal, the Operations Manager asserted that she removed Complainant from federal service because Complainant was repeatedly AWOL during his probationary period. Id. at 94-101. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 2020004157 5 Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant acknowledged that he had been absent from work on the dates he was marked AWOL; however, he maintained that on each of those days, he had sufficient leave balances to cover his absence from work. ROI at 49. Complainant also disputed the Supervisor’s contention that he failed to respond to management’s inquiries. To the contrary, Complainant maintained that he either did not recall receiving a telephone call from the Supervisor or was too ill to notice the Supervisor’s calls and voicemails. Id. at 67-8. Complainant further maintained that he was “anecdotally aware” that management treated him differently than “similarly situated employees of a different race or skin color both in the outcome and in the consideration of the granting of leave within the workgroup.” Id. at 57-61. Complainant emphasized that the Agency never counseled or disciplined him prior to removing him. Id. at 34. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are simply unpersuaded by Complainant’s offers of pretext. While we are certainly mindful that the record appears to suggest that Complainant experienced a series of unfortunate circumstances during his probationary period that may have affected his attendance, we find that the probative evidence shows that management’s actions were based on his attendance record and/or conduct rather than his protected classes. In reaching this conclusion, we considered Complainant’s claim that he was “anecdotally” aware that management treated other employees more favorably. However, Complainant failed to identify any concrete comparative examples to substantiate his “anecdotal” allegations. As such, we are not persuaded by that argument alone. As for Complainant’s assertion that he had sufficient leave balances, even if we assume that to be true, we do not find it to be dispositive, as the records show that management’s concerns also related to Complainant’s failure to properly submit leave requests, call in sick, and timely respond to management’s inquiries. Furthermore, our review of the record shows that management voiced concerns about Complainant’s leave usage on several occasions. See, e.g., ROI at 5-6, 129, and 133. Despite these warnings, Complainant continued to incur AWOL charges, which ultimately resulted in his removal. 2020004157 6 Given Complainant’s probationary status, we are disinclined to second-guess the Agency, as the Commission has long held that agencies have broad discretion to remove probationary employees absent discriminatory reasons. See Valencia L. v. Dep’t of State, EEOC Appeal No. 0120150419 (May 12, 2017). We, therefore, conclude that Complainant cannot prevail on his complaint. 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. 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. 2020004157 7 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). 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 16, 2021 Date