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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020001022 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyoko H.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020001022 Hearing No. 570-2018-00105X Agency No. IRS-17-0100-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 2, 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 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 discriminated against her based on her race when her Candidate Development Program application was not submitted to Executive Services, which prevented her from becoming a Senior Executive. 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. 2020001022 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Executive Officer at the Agency’s Taxpayer Advocate Service in Washington, D.C. Complainant stated that she was accepted into the Candidate Development Program (CDP), which prepared candidates for the Senior Executive Service (SES), and she participated in the Fall 2014 class. Report of Investigation (ROI) at 58-59. Complainant’s first-line supervisor (S1) (White) stated that graduating from the CDP does not guarantee placement into the SES, and that upon completion of the CDP requirements, a candidate needs to submit an application for SES certification. S1 stated that Complainant submitted her SES certification paperwork on September 6, 2016, even though she had informed Complainant in August that the National Taxpayer Advocate (NTA) (White) would not endorse her certification. ROI at 78. On January 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when on September 14, 2016, she learned that her CDP application was not submitted to Executive Services, which prevented her from becoming a Senior Executive. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s July 16, 2019, motion for a decision without a hearing and issued a decision without a hearing on September 12, 2019. The AJ found that a decision without a hearing was appropriate because there were no genuine issues of material fact. The AJ noted that while Complainant took issue with some of the Agency’s asserted facts, the issues were either immaterial; unsupported by the evidence; or not true factual disputes but assertions of alternate legal conclusions, and that any discrepancies in the facts were immaterial and did not change the analysis. The AJ found that Complainant did not establish a prima facie case of discrimination, and that aside from her bare assertions, there was no evidence that discriminatory motives influenced the Agency’s actions. The AJ adopted the arguments in the Agency’s motion and granted summary judgment in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal, with additional exhibits including a copy of Complainant’s full deposition. The Agency opposed Complainant’s evidence on appeal, and Complainant responded to the Agency’s opposition.2 2 The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). We note that Complainant’s second brief was submitted beyond 30 days of the filing her appeal; as such, we will not consider the arguments in her second brief. 2020001022 3 CONTENTIONS ON APPEAL Complainant’s contentions Through her attorney, Complainant submits arguments in support of her appeal, with evidence that was “previously referenced and disregarded during the administrative process.” Complainant argues that the AJ disregarded her statements, which “evinces an administrative bias that clearly colored the outcome of the case”; the AJ relied on disputed facts to reach her conclusion favoring the Agency without holding a hearing; and the Agency “failed to demonstrate the absence of material issues of fact, which are myriad.” Complainant argues that there are genuine issues of material fact regarding the lack of communication and S1’s role; the formulation of the claims;3 the Agency’s stated need for an executive in Washington, D.C.; the impetus for relocation; Complainant’s commitment to the position; and NTA’s withdrawing of her support. Complainant also asserts that her sworn statements were not given adequate consideration by the AJ. For example, Complainant states that the AJ gave no apparent consideration to her sworn statement disputing the Agency’s assertion that there was a dire need of having another executive in Washington, D.C., to attend meetings because she was not asked to attend meetings during the time that she was in Washington, D.C. Complainant asserts that a reasonable trier of fact could infer that the relocation requirement was arbitrary, while the need for an executive to be physically present was illusory and a pretext. Complainant states that, when NTA raised concerns regarding a lack of communication, the matters were timely discussed with S1 and that it was S1’s responsibility to communicate with NTA. In addition, Complainant states that NTA refers to a “tipping point,” but that NTA had no communication with Complainant between September 2015 and August 2016, and NTA never informed Complainant that she had reached her tipping point. Complainant requests that the Commission reverse that Agency’s final order and return a determination in her favor, or remand her complaint for a hearing. 3 On appeal, Complainant seems to state that the claim was an allegation of race discrimination when the Agency “created an arbitrary criteria only implemented when the applicant for a position in the Tax Advocate Service was a non-white female. This discrimination took the form of certain individuals being required to participate in a highly competitive, multi-tiered CDP and subsequent 3-person panel interview, while white women were allowed to apply thru an ‘Ad Hoc’ process, thereby bypassing the competitive and interview portions of the application process.” However, there is no indication that Complainant requested to amend her complaint before the Agency or the AJ. In addition, Complainant states that she sought to add retaliation as a basis to her complaint, citing to page six of her affidavit, but a review of page six of her affidavit does not show that Complainant raised retaliation. ROI at 61. As such, this decision will only consider the accepted claim, as outlined by the Agency and the AJ. 2020001022 4 Agency’s Contentions In response to Complainant’s appeal, the Agency objects to the additional evidence submitted. The Agency argues that Complainant submitted her complete deposition on appeal, but that she only filed excerpts of her deposition with her response to the Agency’s Motion for Summary Judgment. The Agency asserts that Complainant’s full deposition transcript was not presented to the AJ for consideration, and that Complainant did not show that it was not available to her at the time. The Agency moves to strike the complete deposition transcript and requests that the Agency affirm its final order. 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. 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. 2020001022 5 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). 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 argued that there were genuine disputes of material facts regarding the lack of communication and S1’s role; the formulation of the claims; the Agency’s stated need for an executive in Washington, D.C.; the impetus for relocation; Complainant’s commitment to the position; and NTA’s withdrawing of her support. However, Complainant only asserted that her testimony was not given adequate consideration; she did not cite to other evidence in the record to show any genuine disputes of material facts. We note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012) (citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001)). In addition, to the extent that Complainant asserted bias by the AJ, Complainant must make a substantial showing of personal bias by the AJ in order to prevail on her contention that the AJ displayed bias. Such bias must be shown to have prejudiced her in this matter. Complainant must establish that the alleged bias demonstrated, so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing. See Smith v. Dep't of the Army, EEOC Appeal No. 01880866 (May 11, 1988) (citing Roberts v. Morton, 549 F.2d 158 (10th Cir), cert. denied, Roberts v. Andrus, 434 U.S. 834 (1977)). In this case, Complainant presented no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive a fair evaluation of her case. As such, we find that the AJ properly issued a decision without a hearing. New Evidence on Appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See EEO MD-110 at Chap. 9, § VI.A.3. Here, the Agency challenged Complainant’s submission of her full deposition with her appeal. We find that Complainant has not provided arguments or evidence to show why the testimony provided in her deposition was not available during the investigation, or any explanation as to why this testimony was not provided to the investigator during the investigative stage in her affidavit or her rebuttal statements. Moreover, Complainant has not shown why she did not provide her full deposition to the AJ. Accordingly, we decline to consider this new evidence on appeal. 2020001022 6 For the sake of argument, we find that even if this evidence is considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove by a preponderance of the evidence that she was discriminated against based on her race. 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, she 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 her 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her race, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. NTA stated that Complainant’s CDP application was submitted, but that she declined to move forward with Complainant’s SES certification package. NTA stated that she based her decision on Complainant’s behavior since she graduated from the CDP when she failed to demonstrate leadership, maturity, and good judgment. NTA stated that Complainant repeatedly failed to elevate issues to her supervisors, and that NTA had concerns with Complainant’s “freelance attitude.” For example, Complainant twice changed her report date to her assignment in Washington D.C.,4 without notifying NTA, and knowing that there was a “dire need” for an executive to be in Washington D.C. ROI at 128-30. NTA stated that the “tipping point” was Complainant’s conduct regarding a mass grievance, which caused NTA to lose confidence in Complainant’s ability to act as an executive. ROI at 129. NTA stated that on August 3, 2016, Complainant informed her that she was going to testify that afternoon as the main witness in the arbitration for the grievance, which was the first time that NTA learned of the arbitration hearing. NTA stated that Complainant did not inform her supervisors because she believed that she could handle the matter alone, and that Complainant did not seem to understand the seriousness of the risk of her actions. 4 Complainant’s initial report date to Washington D.C. was in June 2015, and she changed her report date to November 2015, and then again to January 2016. ROI at 130-31. 2020001022 7 NTA stated that, had she known about the arbitration hearing, she would have consulted appropriate Agency officials, proffered the most convincing evidence, and put forth the best witnesses. NTA further stated that, with only a couple of hours of notice, she was only able to give limited instruction. ROI at 137. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that the Agency’s assertion that the need for an executive to be physically present in Washington, D.C., was arbitrary, illusory, and pretextual. However, Complainant did not provide evidence that NTA was aware that Complainant would not be asked to attend meetings at the time she stated that there was a need for an executive in Washington, D.C. Complainant also asserted that she discussed matters with S1 and that it was S1’s responsibility to communicate with NTA, but we note that Complainant did not dispute NTA’s assertion that Complainant did not share information with NTA. Complainant argued that NTA had no communication with her between September 2015 and August 2016, and that NTA never informed Complainant that she had reached her tipping point. However, the record shows that on August 15, 2016, NTA emailed S1 and asked her to discuss with Complainant the issues related to Complainant’s “disturbing and disappointing” actions on the arbitration hearing. NTA wrote that Complainant continued to ignore her role as part of a team, and that her behavior put the Agency in jeopardy. NTA added that, when she spoke with Complainant in December 2015 and January 2016 regarding her rescheduled report dates, Complainant stated that she had learned her lesson, but that Complainant had not followed through with a change in behavior. NTA concluded that she lost confidence in Complainant. ROI at 140-41. Complainant stated that S1 shared NTA’s email with her on August 15, 2016. ROI at 70. We find that Complainant only made bare assertions that NTA discriminated against her, which are insufficient to prove pretext or that NTA’s actions were discriminatory. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, Complainant did not provide any evidence to show an unlawful motivation for NTA’s action. As such, we find that Complainant did not establish that the Agency discriminated against her based on her race when her CDP application was not submitted, which prevented her from becoming a Senior Executive. 2020001022 8 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 discriminated against her based on her race when her Candidate Development Program application was not submitted, which prevented her from becoming a Senior Executive. 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. 2020001022 9 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. 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 June 7, 2021 Date