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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020001379 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madlyn F.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020001379 Hearing No. 570-2017-01250X Agency No. IRS-17-0129-F DECISION On November 27, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency’s December 10, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the preponderance of the evidence establishes that Complainant was subjected to discrimination based on race, sex, age, and/or reprisal. 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. 2 This initially premature appeal has since been cured by the Agency's issuance of its final order. 2020001379 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0501-14 Financial Program Consultant in the Agency’s Agency-Wide Shared Services, Technology and Investment Strategy Division, Financial Management Branch, Operations Budget Section in Washington, District of Columbia. Complainant’s second-line supervisor was the Financial Management Branch Associate Director (S2), and her third-line supervisor was the Technology and Investment Strategy Division Director (S3). The position of Complainant’s first-line supervisor, the IR-0501-04 Operations Budget Section Chief, was vacant at the time of events giving rise to the instant complaint. Complainant served a 60-day detail as Acting Section Chief from July 10, 2016, through September 10, 2016. Complainant is an African-American female and was born in 1961. Complainant averred that management was aware of her age because she was eligible for early retirement. According to Complainant, she filed an EEO complaint in December 2014, alleging that she was subjected to discrimination based on race. Although Complainant was not in S2’s chain of command in December 2014, she stated that S2 was aware of her prior EEO activity. S2 stated that she first learned that Complainant had engaged in protected EEO activity when she received an email from an EEO Counselor on December 8, 2016. Complainant timely applied for the IR-0501-04 Supervisory Financial Program Consultant (Section Chief) position advertised under vacancy announcement number 16CE1-AWM0494- 0501-04-JB. Complainant was one of three candidates referred to the selecting official, S2, on the Best Qualified list. S2 stated that she reviewed the three applications and created a spreadsheet that contained the applicants’ current position, series/grade, awards, last performance rating, competency rating, leadership readiness, significant accomplishments, and impact of the accomplishments. S2 selected a Caucasian male born in 1972 (C1) for the position. S2 averred that C1’s level of leadership readiness made him the best fit for the position. C1 was an IR-0501-05 Supervisory Financial Management Analyst. S2 noted that C1 had been a manager since 2008, had a beneficial background in the Office of the Chief Financial Officer, his competencies were rated as “Ready Now” for a Senior Manager position, and his performance was rated “Outstanding” for the fiscal year (FY) 2015. Complainant’s competencies were rated as “Ready with Development” for a Frontline Manager position, and her FY 2015 performance rating was “Exceeds Fully Successful.” The third candidate (C2) was an IR-0512-04 Supervisory Internal Revenue Agent, his competencies were rated as “Ready with Development” for a Senior Management position, and he was rated “Exceeds Fully Successful” in FY 2015. Complainant noted that she had worked as a Section Chief from 2002 to 2006, managing 10 or more employees. Complainant alleged that her race and sex were factors in her nonselection, as C1 was a non-African-American male, and C1 was less qualified than Complainant. 2020001379 3 Complainant averred that her age and EEO activity were also factors because S2 was aware of her age and her prior EEO activity. Complainant stated that the Agency generally prefers to hire younger employees who will work for several years before retiring. On October 18, 2016, S2 called Complainant to inform her that she had not been selected for the Section Chief position. According to Complainant, S2 told her that she was not selected because she had had received negative feedback after Complainant’s detail as Acting Section Chief, including comments from staff that Complainant came across as a know-it-all. S2 averred that Complainant said that her nonselection was unfair because she had worked for the Agency for a number of years, she had previously worked as a manager before accepting a position to learn more technical work, and she knew “everything” about budget. According to S2, she told Complainant that she continued to learn every day, as the budget environment constantly changes. S2 denied telling Complainant that she was not selected based on feedback from staff during her detail. According to S2, she provided Complainant with feedback about her detail during the October 18, 2016, call, but she did not use the feedback during the selection process. The record contains a September 15, 2016, email from S2, requesting feedback about Complainant’s detail as Acting Section Chief by September 22, 2016. S2 issued Complainant a rating of “Exceeded” for fiscal year 2016. According to S2, she had originally rated Complainant as “Met” because her self-assessment did not reflect that she had exceeded expectations. On October 7, 2016, S2 emailed Complainant and asked for additional information about her performance, including: (1) an example of a process improvement that would result in improved customer service, reduced customer burden, enhanced communication, increased data quality, and/or a more efficient/streamlined work process; and (2) an explanation of support she provided with an emphasis on receipt and acceptance timeliness. S2 averred that the only process improvement Complainant described was a spreadsheet she created for her personal use and that Complainant did not provide any information regarding support with an emphasis on receipt and acceptance. S2 stated that she spoke with Complainant on October 31, 2016, to discuss her appraisal. According to S2, Complainant objected that she had received an “Exceeds” rating from her previous supervisor, and, with inconsistent leadership during the rating period, she was not informed that her performance was not at the same level. S2 averred that she discussed the matter with S3, who agreed that, although Complainant had not demonstrated that she exceeded expectations, they should raise Complainant’s rating because of the lack of consistent leadership. S2 stated that she and S3 agreed to be clear with expectations and give feedback to Complainant moving forward. On December 7, 2016, Complainant emailed S2 and asked if she would receive a performance award based on her “Exceeded” performance appraisal. S2 responded that, when an employee is rated “Exceeded,” it is up to the manager whether to approve a monetary award. S2 stated that she was exercising her discretion and would not be approving an award for her performance. 2020001379 4 According to S2, she considered Complainant’s performance and compared her performance to others’ performance in deciding not to give Complainant an award. Complainant stated that she consistently received performance awards between 2001 and 2014, when she filed her first EEO complaint. Complainant asked S3 to review S2’s decision not to give her a performance award for FY 2016. S3 agreed with S2’s decision that Complainant’s performance did not warrant an award. According to S3, Complainant’s justification for receiving an award was general and described routine work assignments rather than accomplishments or complex commitments that had a measurable impact on the Agency. Complainant initiated contact with an EEO Counselor on November 9, 2016. On January 19, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (born in 1961), and reprisal for prior protected EEO activity when: 1. On or about October 18, 2016, she was not selected for the Supervisory Financial Program Consultant (Section Chief) position advertised under vacancy announcement number 16CE1-AWM0494-0501-04-JB; and 2. On or about December 7, 2016, despite receiving an “Exceeds” rating, she did not receive a discretionary performance award. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC 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 October 31, 2019. 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. Neither Complainant nor the Agency submitted a statement or brief on appeal. ANALYSIS AND FINDINGS 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 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 Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the 2020001379 5 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). 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. In her opposition to the Agency’s motion for summary judgment, Complainant identified the reason for her nonselection as a genuine issue of material fact, stating that S2 told her that she was not selected because of complaints from staff about Complainant’s tenure as Acting Section Chief. We do not find that this raises a genuine issue of material fact. Even if we assume that S2 did base her decision partly on the feedback she received from Complainant’s detail performance, this would not establish discriminatory animus. Moreover, although Complainant cites her years of service and previous managerial experience as evidence of her superior qualifications, we find that this is insufficient to establish discriminatory animus. Complainant further suggested that the subjective criteria used by S2 in making the selection decision favored the other candidates. However, there is no evidence that S2 chose these criteria based on race, sex, age, and/or prior protected activity, and the preponderance of the evidence in the record establishes that S2 used the same criteria to evaluate the applications of Complainant, C1, and C2. 2020001379 6 Complainant also stated that she was told that she was performing at the “Exceeded” level during FY 2016. However, this is not a genuine issue of material fact. Even assuming for the purposes of summary judgment that Complainant was told during FY 2016 that her performance was at the “Exceeded” level, Complainant ultimately received an “Exceeded” rating. Moreover, even if she was told that she was performing at the “Exceeded” level during the fiscal year, this would not establish that the Agency’s legitimate, nondiscriminatory reason for not approving her for a performance award was pretextual. Accordingly, we find that the AJ appropriately issued a decision without a hearing, and we will consider the merits of Complainant’s complaint. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by showing that her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). Complainant alleged that she was subjected to discrimination when she was not selected for the Section Chief position. The Agency’s legitimate, nondiscriminatory reason for selecting C1 was that he had served as a manager since 2008, that he was considered “Ready Now” for a Senior Manager position, that his most recent performance rating was “Outstanding,” and that he had valuable experience from working with the Chief Financial Officer. In contrast, Complainant was considered “Ready with Development” for a Frontline Manager position, and she was rated “Exceeds Fully Successful” in her most recent appraisal. Although Complainant cited her years of service with the Agency and her supervisory experience from 2002 to 2006, we find that Complainant has not established that her qualifications were plainly superior to those of C1 or otherwise established pretext for discrimination. Complainant also alleged discrimination when she did not receive a performance award for FY 2016. The Agency’s legitimate, nondiscriminatory reason for not providing Complainant with a performance award was that Complainant did not go above and beyond what was expected of her. 2020001379 7 Although Complainant was ultimately rated “Exceeded” for FY 2016, S2 noted that the only process improvement Complainant identified was a spreadsheet for personal use, and Complainant did not identify any support provided with an emphasis on timely receipt and acceptance. S3 agreed with S2’s assessment that the accomplishments presented by Complainant to justify an award were general and reflected ordinary job duties rather than exceptional performance. We find that Complainant has not established by preponderant evidence in the record that the Agency’s proffered reason was a pretext for discrimination based on race, sex, age, and/or reprisal. 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 fully implementing the AJ’s decision. 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. 2020001379 8 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. 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 2, 2021 Date