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

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2020000916 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020000916 Hearing No. 430-2019-00488X Agency No. IRS-18-0923-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 31, 2019, final order 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, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected him to disparate treatment, or disparate impact, on the bases of race or sex, or in reprisal for prior protected EEO activity, when the Agency posted two vacancy announcements for Senior Revenue Agents which included qualifications or restrictions that prevented him from consideration. 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. 2020000916 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent (GS-13) at the Agency’s Large Business and International Division in Greensboro, North Carolina. On July 9, 2018, the Agency posted a Solicitation for Voluntary Reassignment for a Senior Revenue Agent (GS-14) to Raleigh, North Carolina, under opportunity number OLN-LBI-0512- 14-ECPA-1813. Report of Investigation (ROI) at 74. Complainant stated that he did not apply for the reassignment because he was not a Senior Revenue Agent. Complainant also stated that since the vacancy was limited to current Senior Revenue Agents, there was a disparate impact because there were few African American Senior Revenue Agents in the region. ROI at 54. On October 1, 2018, the Agency posted a vacancy for a Senior Revenue Agent (GS-14), under vacancy number 19CS6-LBB0014-0512-14-EC. ROI at 65-73. Complainant stated that this vacancy was limited to employees in the Career Transition Assistance Plan (CTAP) within the commuting area in Raleigh or the Reassignment Preference Program, and that he did not apply due to these restrictions. Complainant also stated that there was a disparate impact because management officials were aware, or should have been aware, that there were few African Americans with the opportunity to apply, or be selected, for the position. ROI at 59. On October 22, 2018, Complainant filed an EEO complaint alleging disparate treatment and disparate impact on the bases of race (African-American) and sex (male), and in reprisal for prior protected EEO activity, when the Agency posted jobs under opportunity number OLN-LBI- 0512-14-ECPA-1813, and vacancy number 19CS6-LBB0014-0512-14-EC, which included qualifications or restrictions that prevented him from consideration. Complainant learned on August 20, 2018, and October 5, 2018, that these positions were filled. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 11, 2019, the AJ issued a Notice of Intent to Issue Decision Without Hearing, and both parties timely responded. On September 25, 2019, the AJ issued a decision without a hearing. The AJ found that, when viewing the evidence in the light most favorable to Complainant, he did not establish a prima facie case of discrimination because he did not apply for either position, and he was not qualified for the positions. The AJ also noted that Complainant attempted to frame his claims to allege that the Agency limited opportunities for African Americans. However, there was no evidence to support this assertion, other than Complainant’s subjective beliefs. As such, the AJ found that the Agency was entitled to summary judgment on Complainant’s disparate treatment claims. 2020000916 3 Regarding Complainant’s disparate impact claim, the AJ determined that there was no evidence that a facially neutral policy or practice had a disparate impact on African Americans or African American men. The AJ further noted that Complainant did not provide proof of a disproportionate adverse impact or a statistical disparity, and he only provided his opinions, subjective beliefs, and anecdotal conclusions. The AJ also noted that Complainant alleged that the Agency violated terms of the collective bargaining agreement with the union; however, the AJ stated that the EEOC did not have jurisdiction over claims related to federal sector labor laws or the terms of a collective bargaining agreement. The AJ concluded that there were no genuine issues of material fact, and that the Agency was entitled to judgment based on the evidence in the record. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ did not properly consider his retaliation claim, his documents, or information supporting his discrimination claims. Complainant also alleges that the AJ erred in determining that the EEOC is “not the proper venue to rule on discrimination in the workplace” and erroneously failed to allow for discovery to compel the Agency to provide relevant documents and information, such as statistical data. The Agency argues that there is no evidence to support Complainant’s claims of discrimination and that his enumerations of error are without merit. The Agency asserts that Complainant does not have more than a mere hunch that his non-qualifications for both positions were based on discrimination, and that he did not identify any data or statistical evidence showing that the Agency’s facially neutral policy with regard to the qualifications for the two vacancy announcements had a disparate impact on members of his protected class. The Agency requests that the Commission affirm its final order adopting the AJ’s decision finding no discrimination. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. 2020000916 4 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). On appeal, Complainant argues that the AJ erred when he did not allow for discovery. However, we find that Complainant did not identify a policy or practice for the Agency to provide responsive statistical data. We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant only makes a general allegation that the AJ did not properly consider his claims or evidence, but Complainant did not identify any material facts that are in dispute. As such, we find that the AJ properly issued a decision without a hearing. Collateral Attack Complainant alleges that the AJ erred in determining that the EEOC was “not the proper venue to rule on discrimination in the workplace.” 2020000916 5 However, we find that the AJ did not err when he found that the EEOC did not have jurisdiction over claims related to the terms of a collective bargaining agreement because Complainant’s allegations regarding the collective bargaining agreement are a collateral attack. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep’t of Def., EEOC Request No. 05931059 (July 15, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his claim regarding the terms of the collective bargaining agreement is within the negotiated grievance process. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). We find that Complainant did not establish a prima facie case of discrimination based on race or sex. Complainant may establish a prima facie case of discrimination by providing evidence that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) either that similarly situated individuals outside his protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004). Complainant is a member of protected classes based on his race and sex. Assuming, arguendo, that Complainant suffered adverse employment actions, we find that Complainant did not allege that similarly situated individuals outside his protected class were treated differently. For the Senior Revenue Agent reassignment, Complainant stated that the selectee appeared to be male, but that he did not know the selectee’s race. ROI at 55. 2020000916 6 Regarding the Senior Revenue Agent position announced under vacancy number 19CS6- LBB0014-0512-14-EC, Complainant did not identify the selectee, and he stated that he did not know any employee who applied for the position. ROI at 60. In addition, Complainant did not provide any evidence surrounding the alleged adverse employment actions that would give rise to an inference of discrimination. Accordingly, we find that Complainant did not show that the Agency subjected him to disparate treatment based on his race or sex when it posted two vacancy announcements for Senior Revenue Agents which included qualifications or restrictions that prevented him from consideration. We also find that Complainant did not establish a prima facie case of retaliation. A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant stated that he filed three prior EEO complaints; however, he did not show that the Agency was aware of his protected activity. While Complainant stated that there were “probably several people involved,” he did not identify the responsible management officials for either vacancy or show that they were aware of his prior EEO activity. ROI at 49-50, 56. While two management officials stated that they were aware of Complainant’s prior EEO activity, they stated that they were not responsible for establishing the selection criteria for either position. ROI at 103-4, 107, 113-14, 120. Accordingly, we find that Complainant did not show that the Agency retaliated against him when it posted two vacancy announcements for Senior Revenue Agents which included qualifications or restrictions that prevented him from consideration. Disparate Impact To establish a prima facie case of disparate impact, a complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion.”). Specifically, a complainant must: (1) identify the specific practice or practices 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 facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Complainant v. Dep’t of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). We find that Complainant did not establish a prima facie case of disparate impact for his discrimination claims. Specifically, we find that Complainant did not show any Agency practice or policy which placed qualifications or restrictions on vacancy announcements that prevented him from consideration. 2020000916 7 While Complainant alleged that the vacancy announcements were limited to current Senior Revenue Agents or CTAP employees, we find that this only applied to these two vacancy announcements, and that there was no Agency policy that limited all vacancy announcements in the same manner. ROI at 53, 60. The Executive Officer noted that these vacancies, which were not promotion opportunities, allowed for a reassignment to a different practice area, and that the Agency posted them prior to any promotion opportunities to limit the number of current GS-14 employees applying for GS-14 promotion vacancies. ROI at 140. As such, we find that Complainant did not establish a disparate impact when the Agency posted two vacancy announcements for Senior Revenue Agents which included qualifications or restrictions that prevented him from consideration. 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected him to disparate treatment or disparate impact on the bases of race or sex, or in reprisal for prior protected EEO activity, when the Agency posted two vacancy announcements for Senior Revenue Agents which included qualifications or restrictions that prevented him from consideration. 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 2020000916 8 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. 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. 2020000916 9 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 July 15, 2021 Date