[Redacted], Lyman D., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020002106 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyman D.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020002106 Agency No. IRS-19-0720-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 December 13, 2020, final decision 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 decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency discriminated against him based on his color, national origin, race, or sex when it rescinded his tentative job offer. BACKGROUND At the time of events giving rise to this complaint, Complainant was a job applicant with the Agency. On September 24, 2018, the Agency opened a vacancy announcement for a Tax Examining Clerk (Temporary, Not to Exceed One Year), under vacancy announcement Number 18CW2-WIX0092-0592-04-AH. Report of Investigation (ROI) at 170-7. 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. 2020002106 2 Complainant stated that he applied for the position in October 2018, but he did not submit any documentation online. Complainant stated that he emailed his supporting documents, including his Selective Service Registration document on October 11, 2018, and again on November 21, 2018. ROI at 91, 94. On October 27, 2018, Complainant was notified that his application was referred to the selecting official with a rating of “Superior Qualified.” ROI at 110. Complainant stated that he accepted the offer and attended a fingerprint session. ROI at 96. On December 20, 2018, Complainant was informed that his tentative job offer was rescinded. ROI at 111. On March 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Liberia/Africa), sex (male), and color (Black) when his tentative job offer for the position of Tax Examining Clerk (Temporary, Not to Exceed One Year), under vacancy announcement number 18CW2- WIX0092-0592-04-AH, was rescinded on or about December 20, 2018. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed that Complainant established a prima facie case of discrimination on all his bases and found that management officials articulated legitimate, nondiscriminatory reasons for rescinding Complainant’s tentative job offer. Specifically, Complainant’s failure to provide proof of his Selective Service Registration. The Agency then found that while Complainant claimed that he submitted the documentation, he did not present persuasive evidence to show that any management officials were aware that the email from the printing service sent on October 11, 2018, contained his Selective Service Registration documentation. The Agency also determined that there was no evidence that Complainant re-sent the documentation on November 21, 2018. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted multiple statements in support of his appeal, and he emailed a request for an extension to consult an attorney. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions With his appeal, Complainant argues that management officials were aware of the printing service emailing a “Scan” on October 11, 2018, which contained his Selective Service Registration documentation. 2020002106 3 Complainant asserts that he was rated Superior, which “implied” that the documents in the email sent on October 11, 2018, were “definitely used to rate” him, and that there was no alternative source for the documentation that was used to rate him. Complainant also notes that his prior job applications with the Agency contained his Selective Service Registration documentation. Complainant states that he identified the time and date that he was fingerprinted. On February 6, 2020, Complainant mailed a second statement in support of his appeal. Complainant stated that he traveled for his fingerprinting session on November 13, 2018, and that he was “detained” by security and told that his name was not on the list. On February 18, 2020, Complainant mailed a third statement, and he included a request for an opportunity to “strengthen” his appeal. Agency’s Contentions The Agency argues that Complainant cannot establish a prima facie case of discrimination because there is no evidence which ties the rescinded job offer to his protected classes. While Complainant claimed that he was the “only… black male in the group” when he provided his fingerprints, the Agency noted that the Human Resources specialists who handled the matter never met Complainant and were not aware of his race, color, or national origin. The Agency states that even if Complainant established a prima facie case of discrimination, it offered evidence of legitimate, nondiscriminatory reasons for its actions. The Agency notes that Complainant submitted his application through the USAJobs website on October 10, 2018, but he did not submit his supporting documentation through the online application process. On November 20, 2018, the Agency sent Complainant a request for additional documentation regarding his Selective Service Registration, with instructions that Complainant “include [his] name and the vacancy announcement number 18CW2-WIX0092-0592-04-AH, so [the Agency] can promptly respond to [his] inquiry.” The Agency notes that during the EEO investigation, the EEO Investigator assigned to the instant complaint instructed a Human Resources Specialist (HRS) to search for an email from “VIP Printing,” and HRS located the October 11, 2018 email. The Agency states that it rescinded Complainant’s tentative job offer believing that Complainant had not submitted supporting documentation regarding his Selective Service Registration. Although Complainant, through “VIP Printing,” submitted the information via email, the Agency notes that there was no identifying information in the subject line, attachment, or body of the email, or anything that would allow the Agency to connect the October 11, 2018 email to Complainant and his application. In addition, while Complainant claimed that VIP Printing sent the supporting documentation on November 21, 2018, the record only contains the October 11, 2018 email. The Agency asserts that an oversight occurred that resulted in an eligible employee being deemed ineligible for employment, and it was not an act of discrimination based on a protected class. 2020002106 4 The Agency notes that, although Complainant claims that the Agency’s explanation regarding VIP Printing’s emails is pretext for discrimination, he failed to present any evidence to show that Agency officials were aware of these emails prior to when HRS found the October 11, 2018 email during the EEO investigation, and that Complainant’s bare assertions are insufficient. The Agency requests that the Commission affirm its final decision. 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, at 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”). ANALYSIS AND FINDINGS Complainant’s Appeal Statements 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). Here, Complainant submitted two timely appeal statements; as such, we will consider the arguments in those statements. However, Complainant’s third statement is untimely. We further note that the Commission informed Complainant that his request for an extension to file an additional statement was denied because he had already provided an appeal statement. Accordingly, we will not consider Complainant’s arguments in his third statement. 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). 2020002106 5 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his color, national origin, race, and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. HRS stated that Complainant applied online via usajobs.gov on October 10, 2018, and that he was informed of a tentative job offer on October 27, 2018. ROI at 142. HRS stated that on November 20, 2018, Complainant was sent an email requesting additional information about his Selective Service Registration. ROI at 147. HRS stated that she discovered Complainant’s October 11, 2018 email in the designated “groupbox folder” on August 7, 2019, when she searched for emails from “VIP Printing.” We note that the email did not include Complainant’s name or relevant vacancy number, and that there was no information to connect the email to Complainant’s application. Specifically, the subject of the email was “Scan,” and the body of the email only contained the contact information for “VIP Printing.” HRS stated that she could not locate any other emails regarding Complainant’s Selective Service Registration documentation. HRS stated that the submitted documentation was sufficient to have continued Complainant’s selection process. ROI at 153-4, 244. We find that Complainant has not shown that the proffered reasons were pretext 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 management officials were aware of the printing service emailing a “Scan” on October 11, 2018, which contained his Selective Service Registration documentation. However, Complainant did not provide any evidence to support his assertion. While it is undisputed that Complainant emailed his documentation on October 11, 2018, via a printing service, HRS stated that she only found the email in August 2019. Even considering that the Agency erred in not timely opening this email from “VIP Printing,” we note that this does not prove pretext for discrimination. The Commission has found that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). We find that there is no evidence that shows that any Agency official was aware, prior to August 7, 2019, of the email with Complainant’s Selective Service Registration documentation. 2020002106 6 While Complainant asserted that he previously submitted this documentation with prior job applications, we find that the evidence does not support this. The record contains Complainant’s Prescreen Suitability Eligibility Analysis and Recommendation Worksheets, which show that the Agency did not have supporting documentation in December 2017. Specifically, on December 20, 2017, the Agency noted that Complainant had indicated in a 2017 application that he had registered for the selective service, but that in 2016, Complainant stated that he did not register because it was too late for him to register. The Agency noted that Complainant failed to respond to requests to provide a waiver or exemption letter. In addition, on December 27, 2017, the Agency noted that when Complainant applied for a position in 2015, he indicated that he did not need to register with the Selective Service, but he failed to provide a waiver. ROI at 108-9. Complainant also argued that he was rated Superior, which “implied” that the documents in the October 11, 2018 email were “definitely used to rate” him. However, HRS noted that Complainant submitted an online application on October 10, 2018, and the vacancy announcement noted that an applicant’s rating would depend on the responses to the online questions regarding experience, education and training related to the position. HRS stated that he met the qualifications of the position. ROI at 142, 173, 150. Complainant only argued that it was “implied,” without any supporting evidence, that the emailed documentation was used in determining his qualification for the position. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his color, national origin, race, or sex when it rescinded his tentative job offer. 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 decision finding that Complainant did not establish that the Agency discriminated against him based on his color, national origin, race, or sex when it rescinded his tentative job offer. 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. 2020002106 7 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. 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. 2020002106 8 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation