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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2019005774 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman K.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019005774 Hearing Nos. 480-2015-00410X, 480-2015-00411X Agency Nos. IRS-11-0215-F, IRS-11-0574-F DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 1, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to discrimination and a hostile work environment based on his protected class and in reprisal for his protected EEO activity. 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. 2019005774 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent, GS-11, in the Agency’s Small Business/Self-Employed Division (SB/SE), Examination Operations located in El Monte, California. Agency No. IRS-11-0215-F (Complaint 1) 2 On March 17, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. on November 15, 2010, Complainant was notified that he did not make the Best Qualified List for Vacancy Announcement Number (VA No.) 20-20-TA101462, Lead Case Advocate, GS-0501-12; 2. on November 15, 2010, Complainant was notified that he lacked specialized experience for VA No. 41-76-FBA21610, Management & Program Analyst, GS0343-11/12; 3. on November 19 and 23, 2010, Complainant was not selected for VA No. 30-33- GE101450, Federal, State, and Local Governments (FSLG) Specialist, GS-0501- 12 and VA No. 30-33-GE101452, FSLG Specialist, GS-0501-12; 4. on November 19, 2010, Complainant was not selected for VA No. 30-33- GE101451, FSLG Specialist, GS-0501-12; 5. on December 11, 2010, Complainant was not selected for VA No. 40-41- 10F4278F, Tax Analyst, GS-0501-12; 6. on September 20, 2010, Complainant was not selected for VA Nos. 10PH1- SBB0624-0512-12-AD and 50-30-SBB06248 for Santa Ana and 50-30- SBB0624D for Woodland Hills; 7. on October 5, 2010, Complainant was not selected for VA Nos. 10RH1SBB0434- 0512-12-TK, 10PH1-SBB0436-0512-12/13, 10PH1-SBB0437-0512-12/13, and 10PH1-SBB0594-0512-12/13; 8. on February 15, 2011, Complainant was not selected for VA Nos. 11PH1- SBB0023-0512-and 11 PH1-SBB0024-0512-12; 2 On August 29, 2011, Complainant’s two complaints were consolidated by the Agency. The claims were edited and re-numbered for clarity. 2019005774 3 9. on December 28-29, 2010, January 3-5, 2011, and February 1-3, 2011, Complainant’s requests for advance sick leave were denied and his absences were recorded as Leave Without Pay (LWOP); 10. on January 28, 2011, Complainant was denied representation for a meeting with the Reasonable Accommodation Coordinator (RAC); and 11. on or around January 13, 2011, Complainant was denied use of a Career Learning Plan (CLP). Agency No. IRS-11-0574-F (Complaint 2) On August 19, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when Complainant was not selected under the following Vacancy Announcements, from March 19, 2011 through April 9, 2011: A. VA No. 41-76-FBA14311, for a GS-343-12 position; B. VA No. 35-22-2M10535, for a GS-343-9/11/12 position; C. VA No. 41-69-88020811, for a GS-343-12, position; and D. VA No. 35-03-3M10763, for a GS-343-12/13 position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). A hearing was requested. On May 29, 2019, the AJ issued an Order Dismissing Request for Hearing and Directing Agency to Issue Final Decision (Order). The Order was based on Complainant’s ongoing failure to prosecute his complaint, both when he was represented and after he proceeded without representation. Specifically, Complainant failed to attend a scheduled conference call, failed to respond to the AJ’s order compelling responses, and then disregarded the AJ’s Order to Show Cause for his inactions. Based on Complainant’s failure to comply with the repeated orders and failure to show good cause for not complying with those orders, the AJ dismissed Complainant’s hearing request as a sanction and remanded the case to the Agency for a FAD. On August 1, 2019, the Agency issued its final decision. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged. 2019005774 4 CONTENTIONS ON APPEAL Complainant did not provide an appellate brief. The Agency asserts that its FAD properly concluded that the Agency did not engage in discrimination or retaliation. The Agency requests that the Commission affirm its FAD. 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 (EEO MD-110), at Chapter 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 AJ Sanction The Commission’s regulations afford broad authority for the conduct of hearings by Administrative Judges. See 29 C.F.R. § 1614.109 et seq.; Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). When a complainant or agency fails to comply with an AJ’s order, an AJ may take action against the noncomplying party pursuant to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision in favor of the opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv). Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. See Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). A sanction may be used to deter the noncomplying party from similar conduct in the future, as well as to equitably remedy the opposing party. Id. Specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. 2019005774 5 The record demonstrated that Complainant failed to appear before the AJ for a scheduled teleconference and repeatedly failed to respond to various orders. Based on this behavior, the AJ dismissed the hearing request as the least severe sanction and remanded the complaint to the Agency for a final Agency decision. Considering the record, we find that the AJ’s dismissal of the hearing request, as a sanction, was narrowly tailored to what he objectively believed were the inactions of Complainant. Based on the information and documentation that was before the AJ, we find that that AJ’s issuance of the sanction was not an abuse of discretion. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For his claim of reprisal, Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon our review of the voluminous evidentiary record which consists of numerous affidavits and exhibits and having fully considered and analyzed the record before us, we conclude that the preponderant evidence does not establish discriminatory or retaliatory animus.3 3 The record in this case is exhaustive and details numerous incidents in support of the claim. We will not individually address each incident of alleged discrimination. Although the claims will not be individually addressed, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of disparate treatment and a hostile work environment. 2019005774 6 Even if we assume, arguendo, that Complainant has established a prima facie case of discrimination and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In claim 9, Complainant asserted that his requests for advance sick leave were denied, and that his absences were recorded as Leave Without Pay (LWOP). Complainant argued that the actions were discriminatory and in retaliation. The Supervisor (S1) stated that Complainant was aware of management’s requests for him to submit required medical documentation for his advanced sick leave requests. S1 averred that had the required documentation been submitted then the sick leave may have been approved. It was only after Complainant failed to comply with the requirements, that his requests were denied. Here, Complainant did not provide any documentation that he had complied with the Agency’s requirements for requesting advanced sick leave. There is no indication that S1 discriminatorily denied the requests and recorded the absences as LWOP. Regarding claim 10, Complainant asserted that he was denied representation for a meeting with the Reasonable Accommodation Coordinator (RAC). In this incident Complainant requested that a colleague be allowed Official Time in order to attend the meeting with him. However, the Supervisor (S2) informed Complainant that the meeting did not relate to an EEO complaint and, therefore, the colleague could not use Official Time. S2 informed Complainant that the colleague could request leave in order to attend. However, Complainant and his colleague chose not to do so, and his colleague did not attend. Here, S2 allowed the representative to attend the meeting, and only denied the use of Official Time. Since Complainant was not requesting Official Time as it related to the EEO process, he was not entitled to official time under 29 C.F.R. § 1614.605. See EEO MD-110, Chapter VII § C (Aug. 5, 2015). See also Zysk v. U.S. Postal Serv., EEOC Appeal No. 0120081834 (Sept. 4, 2008) (this regulation provides, in part, that if the complainant is an employee of the agency, he shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information). Accordingly, the denial of the Official Time request was appropriate. Regarding claim 11, Complainant asserted that he was denied use of a Career Learning Plan (CLP). S1 testified that once Complainant contacted him regarding the CLP, he arranged with Complainant to begin the process. S1 stated that they had an initial meeting in which he provided Complainant a package of cases to review as part of the CLP. S1 then scheduled two additional meetings with Complainant to continue the CLP process but Complainant failed to show to either meeting. Complainant did not refute this statement. The record indicates that management, contrary to Complainant’s claim, attempted to engage and process a CLP for Complainant once requested. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such a time and attendance, and training programs, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business 2019005774 7 judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. In this matter, Complainant failed to provide sufficient arguments, below or on appeal, that the reasons provided by the Agency were false and merely pretext for discrimination. The incidents described all demonstrate routine business matters. Based on the record, there is no evidence to demonstrate that management’s actions in such matters were motivated by discriminatory or retaliatory animus. Regarding the non-selections, Complainant can demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the various selectees. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). The record demonstrated that Complainant applied to a variety of positions that ranged in required skill sets and experience within the Agency as alleged in claims 1 - 8 and A - D. Complainant argued that he was more than qualified for each position and that he was discriminatorily not selected. Based on the record, we find that in each position to which Complainant applied, there were legitimate, nondiscriminatory reasons for his non-selections. In reviewing matters such as hiring and promotions, the Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). In these various positions, Complainant failed to provide any documentation or evidence of discriminatory animus on part of hiring officials. In some instances, Complainant simply did not make the Best Qualified (BQ) list. This was often due to a lack of the desired skill set for the position. For example, in claim 1, Complainant scored 15 out of 25 on the summary score and his application did not indicate the desired taxpayer advocate service experience or knowledge. Accordingly, he did not make the BQ list. This similarly occurred in claims 2, 7, A, B, C and D. Additionally, in claims A and C, the announcements were ultimately canceled, and no selection made due to a hiring freeze. In other applications, Complainant made the BQ list, but did not score as high as the selectee. 2019005774 8 This occurred in claim 4, where Complainant ranked the lowest of the 4 applicants to make the BQ list. In that claim, Complainant failed to provide documentation that he was plainly superior to the selectee. In other vacancies, no selections were made as the hiring officials did not find anyone in the applicant pool to be suitable to the organization. This occurred in claim 3, where the selecting official determined that the applicants all lacked the appropriate and desired skill set regarding employment tax issues, government entity relations and taxpayer matters. The selecting official noted that Complainant’s resume primarily focused on his income tax and accounting experience, while the position sought an entirely different skill set. For similar reasons, officials also made no selections in claim 5, and part of claim 8. In some vacancies, such as claim 6 and 8, selectees were internally recommended, and could be deemed as preselected candidates. The Commission has previously determined that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Envtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). In the claims where a candidate was internally recommended, there is no indication that the decision to do so was based upon a prohibited basis. For the reasons discussed above, we find that Complainant has failed to show that discriminatory animus based on his disability or prior EEO activity was the real reason for the non-selections. Hostile Work Environment To the extent Complainant alleged that the events raised constituted a claim of harassment, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s protected bases or EEO activity played any role whatsoever in the Agency’s actions. Moreover, the responsible management officials provided legitimate, non-discriminatory explanation for its actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order finding no discrimination. 2019005774 9 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. 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). 2019005774 10 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 July 19, 2021 Date