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

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2019005182 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ginger N.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019005182 Hearing No. 460-2015-00074X Agency Nos. IRS-10-0266-F, IRS-10-0791-F, IRS-11-0391-F, IRS-12-0716-F DECISION On August 12, 2019, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its action not to implement any part of the EEOC Administrative Judge's (AJ) decision which found discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. On September 10, 2019, Complainant filed a cross-appeal with the Equal Employment Opportunity Commission, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 12, 2019, final order concerning her 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, the Commission VACATES the Agency’s final order. 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. 2019005182 2 ISSUE PRESENTED Whether the AJ appropriately addressed Complainant’s claims of discrimination when she addressed three of the seven accepted claims, and made no determinations regarding the four other claims? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Analyst, International Individual Compliance, GS-0512-14, at the Agency’s Large Business and International, International Individual Compliance division in Houston, Texas. Complainant filed four separate non-selection complaints. All of the claims but one (Claim 8) were accepted for investigation. Due to the similar nature of the claims, all complaints were consolidated by the AJ under EEOC Hearing Number 460-2015-00074X. Agency No. IRS-10-0266F On April 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and sex (female) when: 1. on or about January 19, 2010, Complainant was not selected for the position of Supervisory Internal Revenue Agent, IR-0512-01, with the Agency advertised under Vacancy Announcement Number 50-30-SP91739M. Agency No. IRS-10-0791F On January 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity when: 2. on or about December 21, 2009, Complainant was not selected for the Program Management Operations Support, IR-0340-01, position pursuant to Vacancy Announcement Number 60-20-LMM-00064; 3. on or about December 29, 2009, Complainant was not selected for the Supervisory Internal Agent, IR-0512-01, position pursuant to Vacancy Announcement 60-98-LMM-00106; and, 4. on or about August 2, 2010, Complainant was not selected for the Supervisory Management and Program Analyst LMSB, IR-0343-01, position pursuant to Vacancy Announcement Number 60-98-LMM-00161. 2019005182 3 Agency No. IRS-11-0391F On May 31, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity when: 5. on February 9, 2011, Complainant was notified that she did not rank high enough to make the best qualified list (BQL) for a Supervisory Revenue Agent position pursuant to Vacancy Announcement Number IR-01-50-30-SP02013M; and, 6. on March 28, 2011, Complainant was notified that she was not selected for an Internal Revenue Agent (IRA) Senior Manager position pursuant to Vacancy Announcement Number IR-01-50-SP10242M. Agency No. IRS-12-0716F On October 12, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity when: 7. on June 27, 2012, Complainant was not selected to the position of Program Manager, IR-0340-1, as advertised in Vacancy Announcement Number 12AN2- LMB5001-340-01-NT; and, 8. on September 19, 2012, the term “entitlement” was used by the International Individual Compliance Director. On June 5, 2013, the Agency dismissed Claim 8 pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency stated that the circumstances that gave rise to the claim arose in the course of confidential settlement negotiations during a September 17, 2012, EEO mediation with the Individual Compliance Director. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on all the complaints. The AJ held a hearing on the consolidated claims on November 3, 4, 5, and 12, 2015. On July 2, 2019, the AJ issued a decision addressing the discriminatory non-selection claims. While the AJ addressed Claims 1, 3, and 7 in detail, the AJ did not address Claims 2, 4, 5, and 6. The AJ noted that while Complainant was qualified for the positions in Claims 2, 4, 5, and 6, she was not going to address those claims. The AJ repeatedly stated that lack of discussion was not the same as a determination finding. 2019005182 4 Regarding claims 1, 3, and 7, the AJ determined that while the Agency presented legitimate, nondiscriminatory reasons for the non-selections, Complainant had provided sufficient evidence to demonstrate that the reasons provided were mere pretext for discrimination. The AJ concluded that the Agency discriminated against Complainant with respect to those claims. Since the AJ determined that the Agency discriminated against Complainant regarding the positions raised in Claims 1, 3, and 7, she determined that Complainant was entitled to appropriate remedies and relief as delineated in 29 C.F.R § 1614.501 and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The AJ ordered the Agency, among other things, to promote Complainant to a substantially equivalent permanent senior manager position, with back pay and benefits; to compensate Complainant $60,000.00 for non-pecuniary damages and $2,750.00 for the cost of deposition transcripts; to compensate Complainant's attorneys for fees and expenses; to post written notices of the discrimination finding; and to train management officials on employment-discrimination law. On August 12, 2019, the Agency issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination as alleged. The Agency stated that it would not implement the AJ’s July 2, 2019, decision. CONTENTIONS ON APPEAL On September 3, 2019, the Agency submitted its appellate brief. The Agency argued that the AJ’s decision was not supported by the substantial evidence in the record, and that she erred in finding for Complainant in Claims 1, 3, and 7. The Agency again reiterated that the AJ made no determinations regarding Claims 2, 4, 5, and 6, and that the silence was essentially a finding of non-discrimination. On September 6, 2019, Complainant’s attorney, A2, filed a Motion to Dismiss the Agency’s appeal pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at Chap. 9, § IX.B. (Aug. 5, 2015) and 29 C.F.R. §§ 1614.505(a)(3) and 1614.505(b). A2 stated that the Agency has refused to implement any of the AJ’s ordered relief, including the interim prospective relief, and the appeal should therefore be dismissed. A2 argued that the prospective pay and benefits of the GS-15 Senior Manager position, which the AJ ordered the Agency to promote Complainant to, is considered “interim relief” as required by 29 C.F.R. § 1614.505(a)(3). In response to Complainant’s Motion to Dismiss the Agency’s Appeal, the Agency argued that motion was frivolous and should be denied. Specifically, the Agency notes that interim relief is only required when the matter involves removal, separation, or suspension, which clearly was not a factor in the current case. On October 17, 2019, A2 submitted a detailed appellate brief in response to the Agency’s appeal and August 12, 2019, final decision declining to implement the AJ’s July 2, 2019, decision. A2 also noted that he cross-appealed to clarify remedies ordered by the AJ. A2 otherwise urged the 2019005182 5 Commission to affirm the AJ’s decision, noting that the hearing took place over the course of four days with seventeen witnesses, and hundreds of documents. A2 then provided a detailed overview of Complainant’s claims, as well as responses to the Agency’s appeal brief regarding the AJ’s discrimination findings and remedies ordered. A2, however, raised two concerns regarding awarded attorney’s fees and costs. A2 asserted that the Commission should reject the Agency’s request to reduce the awarded fees and costs, noting that that AJ’s awarded fees already represented a reduction in rates. Secondly, A2 asserted that the Commission should actually increase the AJ’s fee award to reflect the full time-value of the attorney hours expended on this matter. A2 first argued that, under Title VII, a successful complainant is entitled to recover attorneys’ fees under the “lodestar” calculation. Blum v. Stenson, 465 U.S. 886, 888 (1985). A2 also argued that the AJ had inappropriately applied the Laffey Matrix in calculating attorney's fees and costs. Based on his arguments, A2 requested that the Commission modify the AJ’s award to $62,176.20, or at the very least the Lodestar amount of $40,522.35. A2 also requested the Commission to clarify the issue of back wages. The AJ ordered that the Agency provide Complainant with an equivalent permanent senior manager position as a remedy for the non-selections in Claims 1, 3, and 7, and that the Agency pay Complainant back wages from the date of the non-selections through February 26, 2018. However, the matter of which non-selection date would be used was not clear. Additionally, A2 noted that, while ordered to do so, the Agency had failed to promote Complainant into a Senior Manager position. As such, A2 argued that there was no reason as to why the back pay benefits should only run from the date of non-selection until February 26, 20182. Instead, A2 requests that the Commission order "back pay from the date of non-selection through February 2018 until such time as the Agency actually promotes Complainant, in addition to those other aspects of the AJ’s decision (retroactive promotion, posting written notices, training, etc.)." On November 18, 2019, the Agency submitted its opposition brief to Complainant’s cross appeal. The Agency reiterated its arguments that Complainant is not entitled to any permanent promotion or back wages. The Agency argued that the AJ’s decision contained multiple errors, and that the Agency’s final decision should be affirmed instead. ANALYSIS AND FINDINGS As an initial matter, we do not agree with Complainant's argument on appeal regarding dismissal pursuant to 29 C.F.R. §§ 1614.505(a)(3) and 1614.505(b). When an agency appeals an AJ's finding of discrimination, interim relief shall be afforded to the complainant in cases involving removal, separation, or suspension continuing beyond the date of the appeal. 29 C.F.R. § 1614.505(a)(1) (emphasis added). This case does not represent one of those situations. 2 On February 26, 2018, the AJ issued her intent to find discrimination and ordered the parties to mediation. The AJ utilized this date for awarding back pay benefits. 2019005182 6 Regarding the AJ’s failure to address Claims 2, 4, 5, and 6, we find it improper. The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. §1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 7, § III.D. (Aug. 5, 2015). Generally, an Administrative Judge will conduct a hearing on the merits of a complaint unless: 1) the parties mutually resolve the complaint and the hearing request is withdrawn; 2) the hearing request is otherwise voluntarily withdrawn; 3) the Administrative Judge dismisses the complaint; or 4) the Administrative Judge determines that material facts are not in genuine dispute and issues an order limiting the scope of the hearing or issues a decision without a hearing pursuant to 29 C.F.R. § 1614.109(g). The Administrative Judge will issue a decision on a complaint and shall order appropriate remedies and relief when discrimination has been found. MD-110 at Ch. 7, § I. In this matter, Complainant requested a hearing and decision regarding her four complaints alleging discrimination on seven non-selections. An Administrative Judge from the Commission adjudicates claims of discrimination and issues decisions. Id. The AJ held a four-day hearing regarding all of the accepted claims, but then chose not to address Claims 2, 4, 5, and 6 in her decision. Complainant did not withdraw those claims, and the AJ did not issue a prior summary judgment on those four claims. Instead of addressing said claims, the AJ repeatedly stated that no determination was to be made as to Claims 2, 4, 5, and 6 and did not specify why. The Agency took the silence to mean that the AJ had determined that Complainant was properly non-selected. However, the AJ repeatedly noted that there was simply no determination made, and that silence on the matter was not the same as a finding. The refusal to address the other four claims was improper as Complainant requested a hearing and decision on the entirety of her complaint. Moreover, the AJ found discriminatory non-selection in three of the seven claims. Based on this finding, the AJ proceeded to detail remedies owed to Complainant. However, the calculation of remedies is incomplete as there was no review regarding the other four claims. Additionally, as the Agency appropriately argued, attorney's fees and costs should be calculated based on the successfulness of the claim and/or complaint. Therefore, we find that a calculation of remedies owed cannot be properly assessed without a determination of discrimination regarding all claims at issue. Based on the lack of a determination regarding Claims 2, 4, 5, and 6 and its impact on remedies, we find that the matter should be remanded in its entirety for a full discussion on all claims. CONCLUSION Accordingly, the Commission VACATES the Agency's final decision and REMANDS the matter for a hearing pursuant to this decision and the Order of the Commission, below. 2019005182 7 ORDER The Agency shall submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within thirty (30) calendar days of the date this decision is issued. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 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: 2019005182 8 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your 2019005182 9 appeal with the Commission. 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. 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, Director Office of Federal Operations June 28, 2021 Date