[Redacted], Efrain B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2020003481 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Efrain B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2020003481 Agency No. DO-19-0880-F DECISION On May 19, 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 April 20, 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 period at issue, Complainant worked as a Staff Assistant, OR-0301-42, at the Agency’s Office of Financial Research (OFR) in Washington, D.C. On July 7, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on race (Black), sex (male), disability and age (49) when on March 18, 2019, he received a newly revised Staff Assistant (SA) position description (PD) that 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 2020003481 added increased duties and responsibilities, but did not include a grade increase and/or increase in pay.2 After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. On appeal, Complainant does not submit any statements or briefs. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2 In its final decision, the Agency noted that the investigation of the complaint clarified claims and bases. The Agency acknowledges that the acceptance was framed as a violation of the Equal Pay Act (EPA). The Agency found, however, no facts supporting an EPA violation, and therefore revised the framing of the accepted claim to reflect Complainant’s true intent, based on the Investigative Report, to only asserts violations of Title VII, the Rehabilitation Act and the ADEA. On appeal, Complainant does not address the dismissal of any EPA claim and we will not address it further herein. 3 2020003481 Here, the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions during the investigation into the complaint. Complainant was notified on March 18, 2019, of the rewriting of the SA PD, following a reduction in force (RIF) and reorganization. Complainant alleged that the post-reorganization PD contained a marked increase in duties and resembled the duties he had during his temporary assignment as an Office Administrator (OA), OR-0301-51, from April 30 through August 19, 2017. The change in the PD did not result in an increase of pay, which Complainant averred was warranted. The Agency’s stated that the changes in the SA’s duties were “pen-and-ink” changes that reflected the intended scope of the post-reorganization role of the SA position. The Agency stated further that, during the reorganization process, it reevaluated the staff roles and eliminated the OA position, due to redundancy, and redistributed the remaining essential functions. The changes to the PDs was handled by Human Resources (HR). When a PD resulted in material alterations, the position was reclassified, in accordance with Office of Personnel Management. HR determined that the rewrite of the SA PD and elimination of the OA position did not warrant the SA position to be reclassified, as there were not material alterations. Additionally, the record reflects that, while the revised SA PDs include physical services, tracking vendor information, maintaining office assets, and use of a Government Purchase Card (GPC), the OA PD includes supervision of the entire GPC program. Complainant bears the burden to demonstrate that the Agency’s articulated legitimate, nondiscriminatory rationale is pretext for discrimination. As stated, Complainant does not submit any statements or briefs on appeal and failed to meet his burden based on the evidence developed during the investigation. Disparate Impact Complainant asserted that due to his race, he was subjected to disparate impact discrimination when the Agency changed the SA PD. To the extent that Complainant’s assertions can be construed to be a claim of discrimination due to disparate impact, we find that the record does not support such a claim. In general, to establish a prima facie case of disparate impact, the Complainant must show that an agency practice or policy, while neutral on its face, has a disproportionate impact upon members of the protected class through presentation of statistical evidence which demonstrates a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988) (the petitioner must present statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion). Specifically, the Complainant must: (1) identify the specific policy or practice challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on a complainant to show that the facility neutral standard in question affects those individual within the protected group in a significantly discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Kimble v. Department of Commerce, EEOC Request No. 05950838 (June 20, 1997). 4 2020003481 Here, the record contains insufficient evidence to show that the practice identified had a disproportionate impact on Black employees. Without such evidence, Complainant is unable to show legally significant statistical disparities. Therefore, Complainant failed to establish a prima facie case of disparate impact discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding of no discrimination was established as alleged. 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. 5 2020003481 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 August 10, 2021 Date