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

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020002775 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elias M.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020002775 Agency No. IRS-19-0934-F DECISION On February 27, 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 January 28, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant was discriminated against based on his race, color, age, and national origin as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-2210-14, at the Agency’s Cybersecurity/Criminal Investigation (Cl) Office in New Carrollton, Maryland. 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. 2020002775 2 On June 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Nigerian), color (Brown), and age (60) when on or about April 25, 2019, Complainant received an annual rating containing an unwarranted narrative statement with “negative” comments about Complainant’s performance. Complainant alleged that his annual performance appraisal for the period of May 2018 through April 2019, for which he received a “Meets Expectations” (Meets) rating, included negative comments. Complainant did not describe the specific comments which he felt were negative. He only stated that the alleged negative comments were fabricated by his Complainant’s first- line supervisor (S1). Complainant asserted that the comments did not concern work duties Complainant had been involved in. Complainant indicated his belief that when an employee receives a Meets rating, the appraisal should not include negative comments. Complainant stated that his second-line supervisor (S2) removed the negative comments and replaced them with positive comments. However, Complainant asserted that the revised document was never uploaded to his profile. Complainant also stated that a coworker (C1), who is American (but otherwise inside of Complainant’s remaining protected classes), and who was supervised by S1, also received an evaluation with comments that Complainant felt were negative. Complainant did not state the specific allegedly negative comments. Contained in the record are comments provided by S1 regarding Complainant’s performance. The comments included statements that Complainant had continued to inadequately perform the most basic assignments despite repeated comments from management and customers. The performance feedback indicates that Complainant also began taking sick leave that coincided with days on which performance review meetings were scheduled. S1 stated that he evaluated Complainant and relied on Labor Relations for guidance on how to handle Complainant's performance issues. S1 explained that he had expressed his concerns with Complainant's performance during Complainant’s mid-year review and provided suggestions and direction on how Complainant could improve his performance. S1 noted that Complainant submitted incomplete work; that Complainant’s work was submitted significantly past established timelines; and that S1 had not seen noticeable improvement in areas of concern regarding Complainant's work since the mid-year review. S1 also stated that as the end of the annual evaluation period for Complainant approached, a Labor Relations representative informed S1 that she had made an administrative error and neglected to inform S1 to withhold Complainant's annual within grade increase (WIGI). Therefore, S1 was instructed that he would have to provide Complainant with the same rating Complainant received for his 2018 appraisal period. S1 stated that he was never told that he was required to remove the commentary concerning Complainant's performance deficiencies. S1 added that C1 received a Meets rating and had performance issues but "not to the degree seen with Complainant." 2020002775 3 S2 provided supporting statements, adding that Complainant’s performance issues and poor relationships with customers, were documented prior to S1 becoming the first-line supervisor. S2 stated that Complainant's performance did not improve. S2 also denied that he indicated to Complainant that S2 would add any positive comments or remove any negative ones from Complainant's appraisal. S2 stated his understanding that Complainant’s 2018 Meets appraisal could not be lowered, but the comments in the 2019 appraisal "could reflect the reality of the year." 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant contests the FAD, indicating that management’s statements were inaccurate and fabricated. Complainant also indicates that personnel actions, including demotion and transfer, were taken against S1 and S2 after he sent an email to Human Resources (HR) complaining about S1 and S2. The Agency did not submit an Appeal Brief. 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 To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He 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, 441 U.S. 802 at n. 13. 2020002775 4 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). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd., 545 F.2d 222 (1st Cir. 1976). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, age, and national origin; we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged negative comments that were included in Complainant’s performance rating. S1 and S2 explained, and the record reflects, that the comments in Complainant’s rating reflected Complainant’s performance and were therefore included. Complainant did not present any direct evidence to refute management’s explanations. In an effort to show pretext, Complainant proffered that C1 was comparator. We note that C1 was outside of Complainant’s national origin class. Furthermore, Complainant himself indicated that both C1 and Complainant received negative comments on their performance ratings. However, C1 was not treated differently because like Complainant, C1 also received comments that Complainant considered to be negative regarding C1’s performance. Based upon our review, we find that Complainant has not shown how the comments in C1’s performance established Complainant’s claim of discrimination. On appeal, Complainant contests management’s testimony, indicating that the testimony was inaccurate and fabricated. Complainant failed to provide any documentation or other evidence indicating that the alleged negative comments were subsequently removed from his performance appraisal. Complainant also asserts on appeal that the Agency took personnel actions against S1 and S2 after he sent an email to HR complaining about S1 and S2. However, as to the alleged demotion and reassignment of S1 and S2, Complainant provided no evidence or corroboration of his assertion. Complainant only provided a copy of the email sent to HR complaining about S1 and S2. Upon review of the record, we find that Complainant has not shown that the Agency’s reason was pretext for discrimination. 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. 2020002775 5 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). 2020002775 6 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 9, 2021 Date