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

Equal Employment Opportunity Commission

Oct 19, 2022

Appeal No. 2022000869 (E.E.O.C. Oct. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2022000869 Agency No. IRS-21-0091-F DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated November 18, 2021, finding no discrimination concerning her 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 Disclosure Enforcement Specialist, GS-13, in the Agency’s Privacy, Governmental Liaison and Disclosure, Office of Safeguards, with a post of duty in Miami, Florida. On November 23, 2020, Complainant contacted an EEO Counselor alleging discrimination based on her national origin (Hispanic) when on November 10, 2020, she was not selected for a GS-14, Policy Analyst position as well as five prior promotions/details. On December 30, 2020, Complainant filed an EEO complaint alleging discrimination based on national origin (Hispanic) when: 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. 2022000869 2 1. On November 10, 2020, she learned she was not selected for a GS-14, Policy Analyst position advertised under VAN 20MEM-PGN0479-0301-14. 2. On April 1, 2018, she learned she was not selected for a GS-14, Program Analyst position advertised under Vacancy Announcement Number (VAN) 18CW1-PGN0317-0343-14-L- S. 3. On September 1, 2019, she learned she was not selected for a GS-14, Program Analyst position advertised under VAN 19CS2-PGN1224-0343-14-JN (listed the same incident three times in her complaint). 4. On September 1, 2019, she learned she was not selected for a GS-14, Disclosure Enforcement Specialist position advertised under VAN 19CS2-PGN1224-0343-14-JN (listed the same incident twice in her complaint). 5. On August 1, 2020, she learned that she was not selected for a GS-14, Policy Analyst detail position advertised under VAN PGLD-2020-0021. 6. On August 30, 2020, she learned that she was not selected for a GS-14, Policy Analyst detail position advertised under VAN PGLD-2020-0027. Complainant has not challenged the Agency’s framing of her complaint. The record indicates that on January 15, 2021, the Agency dismissed Claims 2 - 6 as untimely pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency indicated that Complainant did not contact an EEO Counselor regarding the alleged nonselections in Claims 2 - 6 until November 23, 2020, which was beyond the 45-day time limit set by the regulations. The Agency stated that Complainant completed No Fear Act Briefing Refresher training on July 24, 2019, which apprised her of the requirement to contact an EEO Counselor within 45 days. The Agency accepted Claim 1 and investigated the matter accordingly. After completion of the investigation of the accepted claim, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The record indicates that the vacancy for the GS-14, Policy Analyst position was open for the period of September 17 to 30, 2020. The vacancy announcement indicated that the position at issue was a non-bargaining unit position. It further indicated that the position duties included, in part: planning, coordinating, conducting, managing, and evaluating analytical studies and projects; and managing administrative and operational programs, including strategic program planning. There were nineteen applicants, including Complainant, who were deemed best qualified for the position at issue and were referred to the Selecting Official (SO) for consideration. 2022000869 3 Complainant indicated that she was not interviewed for the position at issue even though she was ranked best qualified and referred for consideration. Complainant also indicated that she worked in her GS-13 position for more than six years and had an eight-month Analyst detail as a Data Services - Program Analyst. Complainant’s resume indicates that she was in her current position as a GS-13, Disclosure Enforcement Specialist since September 2014; she was in a detail as a Data Service - Program Analyst for eight months in 2020; and prior to that, she was a Tax Specialist/Tax Compliance Officer for over seven years. Complainant indicated that she did not know who was selected for the position at issue. The SO, who was in a detail as the Deputy Associate Director, Office Safeguards, at the time of the alleged incident, stated that he had no supervisory role with Complainant, and he was solely responsible for the selection process for the position at issue. The SO indicated that after reviewing applications and resumes and other attached documentation, he made the selection without conducting interviews. The SO noted that he was not required to interview applicants as the position was a non-bargaining unit position. The SO stated that as a Policy Analyst, he was looking for someone with analyst experience, familiarity with the Safeguards program, and specifically familiarity with the functions of the Strategy and Risk team. The SO indicated that he selected the selectee (SE), because she had the requisite combination of familiarity with the Analyst role, the Safeguards program, and the functions of the Strategy and Risk team. The SO further indicated that the SE had served in a detail capacity in the GS-14, Policy Analyst position at issue and in another role within the Strategy and Risk team and had several years’ experience within Safeguards and in the Analyst role. The SO indicated that although Complainant had experience in the Safeguards program and with the Analyst role, she lacked the experience with the functions of the Strategy and Risk team. The SE’s resume reveals that at the time of the application, she was in a detail as a GS-14, Policy Analyst, i.e., the position at issue, since August 3, 2020. In that position, she coordinated with the Inventory analyst, partnered with Analyst’s within Strategy and Risk, and acted as Chief of the Strategy and Risk team on multiple occasions. Prior to the detail, the SE was a GS-13, Management and Program Analyst for 2.5 years and a GS-13, Disclosure Enforcement Specialist for 3.5 years. Based on the foregoing, the Agency found that Complainant failed to provide evidence that its action was based on discrimination as alleged. Complainant appealed from the Agency’s final decision. 2022000869 4 ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). Dismissal (Claims 2 - 6) The Agency dismissed Claims 2 - 6 for Complainant’s failure to timely contact an EEO Counselor. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. The record indicates that the alleged incidents occurred between April 1, 2018, and August 30, 2020, but Complainant did not contact an EEO Counselor until November 23, 2020, which was beyond the 45-day time limit set by the regulations. The Agency, undisputed by Complainant, indicated that Complainant completed No Fear Act Briefing Refresher training on July 24, 2019, which included the requirement to contact an EEO Counselor within 45 days. On appeal, Complainant does not dispute the Agency’s statement. Further, Complainant does not provide any justification warranting an extension of the time limit for contacting an EEO Counselor. Thus, we find that the Agency properly dismissed Claims 2 - 6 for untimely EEO Counselor contact. 29 C.F.R. § 1614.107(a)(2). Nonselection (Claim 1) To prevail in a disparate treatment claim such as this, complainant 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 or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022000869 5 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. Where 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). Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency proffered a legitimate, nondiscriminatory reason for her nonselection. The Agency indicated that it selected the SE because she was already in the GS-14, Policy Analyst position at issue in a detail. Complainant claimed that she was in her GS-13 position for over six years and she was in a detail as a Data Services - Program Analyst for eight months. However, there is no indication that long years of work experience in a GS-13 position and/or a detail as a Data Service were required for the position at issue. Complainant also claimed that she was best qualified and was referred for consideration but was not interviewed. The SO stated that he did not interview any applicant, including Complainant, since he was not required to interview as the position was a non-bargaining unit position. Upon review, we find that Complainant failed to show that her qualifications for the position were plainly superior to SE’s qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reason for its action was a mere pretext for discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED. 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 2022000869 6 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). 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. 2022000869 7 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 October 19, 2022 Date