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

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020000405 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanna B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2021003573 Appeal No. 2020000405 Hearing No. 410-2018-00307X Agency No. IRS-17-0564-F DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020000405 (June 7, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as a Contact Representative at the Agency’s Wage and Investment Service Center in Chamblee, Georgia. On September 27, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and harassment based on sex (transgender female) 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. 2021003573 2 1. Management conducted more reviews of Complainant’s work than other employees’ work, refused to provide copies of the reviews, and gave Complainant an “unwarranted” low rating in May 2017; 2. Complainant was prohibited from working overtime from December 12, 2016, through May 19, 2017; and 3. Complainant’s pay increase was agreed upon on July 6, 2017, but not approved. Complainant amended the formal complaint to include the claim that she was retaliated against for filing the complaint when: 4. Complainant became aware that management was freezing her paygrade. After an investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on March 18-20, 2019, and April 4, 2019, and issued a decision on August 28, 2019. As an initial matter, the AJ found that S2 and the Department Manager (DM) credibly testified that they learned that Complainant is a transgender female in May 2017, and that Complainant’s co-workers learned, in September 2017, when Complainant announced this matter during a staff meeting. The AJ noted that this action was consistent with Complainant’s testimony about when she notified others about being a transgender. The AJ stated that S1 credibly testified that he did not learn that Complainant is a transgender female until he was contacted in November 2017 for the instant EEO complaint. The AJ also found that Complainant and others testified that her appearance was not stereotypically female because she wore “unisex” clothing and shoes. The AJ found that Complainant did not establish a prima facie case of sex discrimination for claims 1-3 because the management officials were not aware of Complainant’s transgender status prior to taking these actions. The AJ also found that Complainant did not establish a prima facie case of sex discrimination because the named comparators did not have the same or similar performance ratings as Complainant, and that the evidence showed that their work performance was better than Complainant. The AJ assumed that, even if Complainant could establish a prima facie case of sex discrimination, the Agency provided legitimate, nondiscriminatory reasons for its actions. The AJ found that S2 credibly testified that employees who had performance problems had received a similar number of quality reviews, and that the evidence and testimony showed that Complainant’s performance ratings were based on her performance at the time. The AJ also determined that S1 and S2 credibly testified that employees who were poorly performing were denied overtime, which was consistent with the collective bargaining agreement. 2021003573 3 The AJ also found that the denial of Complainant’s non-competitive promotion was consistent with regulation 5 C.F.R. § 335.104, because Complainant’s performance was unacceptable prior to May 26, 2017, and that she was not eligible for a promotion prior to this time. The AJ then found that Complainant failed to show that the Agency’s reasons were pretexts for discrimination. The AJ noted that during her testimony, Complainant did not dispute that she committed the errors, but only challenged the number of reviews that she received. Although Complainant alleged that management officials purposefully selected incorrect cases for review, the AJ found that the management officials credibly and consistently testified that they did not purposefully select cases and that the cases were selected randomly. The AJ also noted that the management officials credibly testified that due to the volume of their work demands, their focus was on the work and not on attempting to sabotage Complainant for any reason, let alone because she is a transgender individual. The AJ concluded that Complainant had not shown that the Agency’s reasons were pretexts for discrimination. Regarding Complainant’s non-sexual harassment allegation, the AJ found that although Complainant can establish membership in a protected class as a transgender female, she cannot show that she was subjected to unwelcome verbal or physical conduct or that the Agency’s actions were due to her membership in a protected group. The AJ determined that claims 1-3 did not rise to the level of the types of offensive jokes, insults, ridicule, or other verbal conduct that would constitute unwelcome verbal conduct. Rather, they were management’s assessments and attempts to improve Complainant’s performance. The AJ determined that, at most, the incidents were disagreements between Complainant and the management officials concerning her performance, which did not rise to the level of harassment in violation of Title VII. The AJ also found that the management officials did not engage in the actions because Complainant is a transgender female. The AJ further found that the incidents were not so severe or pervasive that a reasonable person would find the conduct to be hostile or abusive. The AJ noted that there was evidence of negative comments about members of the LGBT community within Complainant’s division. However, the AJ found that the comments were not attributable to the management officials in this case, and that there was no indication that these comments were brought to the attention of any Agency management official. The AJ also found that the comments were not directed toward Complainant, or that she observed these comments when they were made. The AJ found that Complainant established a prima facie case of retaliation based on the instant EEO complaint, and that there was a temporal proximity to the adverse action when Complainant was informed in May 2017, that she was entitled to a promotion but did not receive it until November 2017. However, the AJ found that the Agency had a legitimate reason for the pay “freeze.” The AJ found that S2 credibly testified that she submitted the paperwork for Complainant’s promotion shortly after May 26, 2017, after Complainant improved her performance. 2021003573 4 The Agency’s Human Resources (HR) determined that the effective date would be July 9, 2017, to which Complainant agreed. The AJ noted that S2 submitted the paperwork several times, and that personnel changes in HR delayed the processing of the paperwork until November 2017. The AJ stated that the evidence showed that when Complainant received her promotion, she received backpay retroactive to the date of the promotion. The AJ found that Complainant did not provide evidence that would establish that the Agency’s legitimate, nondiscriminatory reasons were pretexts for discrimination. 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. In EEOC Appeal No. 2020000405, we concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In her request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during her original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020000405 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2021003573 5 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 September 2, 2021 Date