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

Equal Employment Opportunity Commission

Feb 22, 2022

Appeal Nos. 2022000253, 2022000254, 2022000255, 2022000256 (E.E.O.C. Feb. 22, 2022)

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 Nos. 2022000253, 2022000254, 2022000255, 2022000256 Hearing Nos. 430-2020-00289X, 430-2018-00160X, 430-2018-00419X, 430-2018-00503X Agency Nos. IRS-19-1348-F, IRS-17-0577-F, IRS-17-0881-F, IRS-18-0319-F DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 20, 2021 final order concerning his consolidated complaints 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. We also consolidate these appeals. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Internal Revenue Agent, GS-13, at its Large Business and International Division in Greensboro, North Carolina. On September 6, 2017, Complainant filed an EEO complaint, Agency No. IRS-17-0577-F, alleging harassment based on race (African American), sex (male), and religion (Baptist) 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. 2022000253, 2022000254… 2 1. On May 12, 2017, his manager physically pushed him several times; 2. On July 14, 2017, he received a lower appraisal than he feels he earned; 3. On several occasions, his manager called him derogatory names, including but not limited to: “overrated,” “blind-squirrel,” “SOB,” “numb nut,” and “stupid;” 4. On several occasions, his manager threatened him, including but not limited to threatening to punch him in the face, stating there would be a “day of reckoning” regarding appraisals and opportunities, and telling stories about African Americans being kidnapped and beaten; and 5. His manager speaks negatively about his religion by saying things like “good people finish last” and questioning his devotion to the tenets of his religion. On December 26, 2017, Complainant filed an EEO complaint, Agency No. IRS-17-0881-F, alleging discrimination based on his race (African American) and sex (male) when: 6. On August 31, 2017, he was not selected for the position of Senior Revenue Agent (Senior Program Specialist), GS-0512-14, under vacancy announcement number 17CS6- LBN0579-0512-14-PB, and the Agency used selection criteria for this position that had a discriminatory impact upon African American males. On April 9, 2018, Complainant filed an EEO complaint, Agency No. IRS-18-0319-F, alleging discrimination based on race (African American), sex (male), religion (Baptist), and in reprisal for prior EEO activity when: 7. His manager consistently denied him developmental assignments and other opportunities that would make him competitive for a higher rating and rated him lower than he deserved when he received an overall 2017 annual performance appraisal rating of “Outstanding.” On September 23, 2019, Complainant filed an EEO complaint, Agency No. IRS-19-1348-F, alleging discrimination based on race (African American), sex (male), and in reprisal for prior EEO activity when: 8. On July 10, 2019, he was not selected for a GS-0512-14, Senior Internal Revenue Agent position advertised under vacancy announcement number 19CON-LBB0170-0512- 14- KB. After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ, consolidating Complainant’s hearing requests, held a hearing and subsequently issued a decision in favor of the Agency. 2022000253, 2022000254… 3 Regarding claims 1-5, the AJ found that at the hearing, Complainant provided no real context or corroboration for the alleged incidents and the information he provided was not credible. The AJ stated that the manager denied he ever threatened Complainant in anyway, and the Agency promptly conducted an internal investigation of Complainant’s harassment claim against the manager when the Agency ultimately became aware of such. The investigator found no witnesses or evidence to corroborate Complainant’s claims. At the conclusion of the investigation, based on the investigator’s recommendation, the manager’s superior had a discussion with the manager about maintaining a professional conversation and demeanor when conversing with employees. The AJ found the manager’s testimony and context to be rational and reasonable and did not support Complainant’s claims as alleged. The AJ stated that Complainant received his mid-year appraisal on July 14, 2017, for the period ending December 31, 2017 (described in claim 7 below). Regarding claim 6, the AJ found that the Agency articulated that Complainant was not selected for the Senior Revenue Agent position because he did not make the best qualified list. The AJ also found that Complainant failed to provide any evidence to support his allegations of improper selection criteria and disparate impact against African American males other than merely alleging lack of African American, male employees in the role of Senior Revenue Agent within the Raleigh/Greensboro district. Regarding claim 7, the AJ found that the Agency articulated that Complainant’s manager gave Complainant an “Outstanding” with 4.60 average Critical Job Elements score for 2017 Annual Performance Appraisal (for January 1, 2017 to December 31, 2017) because he was not consistent in the tax law and analysis areas. The record indicates that Complainant received “Meets” (lower than “Exceeds”) performance aspects ratings for Tax Laws and for Research and Analysis Critical Job Elements resulting his average Critical Job Elements score of 4.60 (lower than the highest score of 5.00). Regarding claim 8, the AJ found that the Agency articulated that Complainant was not selected for the Senior Internal Revenue Agent position because the interview panel members unanimously recommended a selectee to the selecting official, a Regional Manager, who ultimately selected the selectee for the position. The selectee had more experience working with projects and campaigns related to the position and articulated well regarding his leadership skills by providing an example. Complainant did not interview well because he did not articulate his skills and experience and did not provide specific examples related to the job position. Based on the foregoing, the AJ found that Complainant failed to rebut the Agency’s proffered legitimate reasons for its actions. The AJ found that there was no evidence to support a finding of discrimination, reprisal, or hostile work environment as alleged. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2022000253, 2022000254… 4 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). We note in particular that Complainant failed to show he was superior in qualifications to the selectees or that his performance ratings were inaccurate or motivated by discrimination. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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). 2022000253, 2022000254… 5 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. 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. 2022000253, 2022000254… 6 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 February 22, 2022 Date