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

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020001331 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Janet Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020001331 Hearing No. 541-2016-00133X Agency No. IRS-16-0107-F DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued summary judgment in favor of the Agency; and (2) whether Complainant established that she was subjected to discrimination based on race and reprisal, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Representative, IR-07 (equivalent to the GS-11 grade-level), with the Agency in Denver, Colorado. Report of Investigation (ROI) at 125. 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. 2020001331 2 According to Complainant, she is the primary caregiver of her 30-year old son who has been diagnosed with a developmental disability due to an XYY Chromosome condition. ROI at 104. Complainant averred that she notified both the Program Manager and the Acting Program Manager of her son’s condition and that any change in her shift hours would affect her son’s behavior as he does not adapt easily to change. Id. Complainant averred that, after she returned from vacation in August 2015, the Program Manager abruptly provided her with notice to accept a detail to the position of Telephone Systems Analyst at the IR-07 grade-level where she had no training or experience. Id. at 106. Complainant maintained that she was given no choice but to accept the position, and as a result her shift hours changed from 8:00 a.m. to 4:30 p.m. to 7:00 a.m. to 3:30 p.m. Id. Complainant attested that this shift change affected her son’s condition and behavior and her ability to schedule doctor’s appointments for herself. Id. Complainant believed that the reassignment was a demotion to a non-supervisory position and thought she should have been assigned to a Supervisory Analyst position instead. Id. at 108. She also believed that management demoted her because she participated as a witness with respect to EEO complaints made from two of her subordinate employees whom she supervised. Id. at 109. Complainant stated that she was also subsequently reassigned to a Supervisory Collection position on October 5, 2015, with new shift hours again of 9:00 a.m. to 5:30 p.m. Complainant believed that she should have received a promotion upon her reassignment to this Supervisory Collection position. The Acting Program Manager explained that Complainant was detailed to the Telephone Systems Analyst position only on a short-term basis due to the retirement of the employee who formerly permanently held the position. Id. at 125. The Acting Program Manager further explained that Complainant was returned to her permanent Supervisory position on October 5, 2015, after the Telephone Systems Analyst position was filled. Id. The Acting Program Manager averred that Complainant’s benefits did not change because she was simply returned to a supervisory position, which was not considered a promotion. Id. at 148. The Acting Program Manager attested that the hours of this supervisory position required Complainant to work from 9:00 a.m. to 5:30 p.m., as Complainant was assigned to a new team due to another manager being reassigned to a special project. Id. at 148. Complainant maintained, however, that other Supervisors were not made to change their schedules. Further, according to Complainant, on November 19, 2015, she received her performance appraisal with the rating of “meets” expectations, which was lower than her previous rating of “outstanding” that she was given the previous year. Complainant maintained the Acting Program Manager told her she did not receive an “outstanding” rating because of the challenge of having to deal with her subordinate employees from her team who had filed EEO complaints. Id. at 114. However, both the Program Manager and the Acting Program Manager denied that Complainant received the lower rating due the EEO complaints filed by her subordinate employees. 2020001331 3 On December 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), parental status,2 and reprisal for prior protected EEO activity when: 1. On October 5, 2015, she was involuntarily assigned to a new position with a new Tour of Duty; and 2. On November 19, 2015, her appraisal was lowered from “outstanding” to "meets.” Following 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case thereafter granted the Agency’s March 16, 2018, motion for a decision without a hearing and issued a decision without a hearing on September 10, 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. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final order adopting the AJ’s decision finding no discrimination. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, Aug. 5, 2015) (providing that an 2 We note that Complainant alleged parental status as a basis of discrimination. The Commission does not have jurisdiction over claims of parental status discrimination. Moran v. Dep't of Veterans Affairs, EEOC Appeal No. 01A10499 (Oct. 8, 2002). Accordingly, we will not address parental status as a basis herein. To the extent Complainant asserts she was denied reasonable accommodation to properly care for her son, we note that individuals are not entitled to receive reasonable accommodations based on a relationship or association with a person with a disability. Lazer v. Dep't of Transp., EEOC Appeal No. 01A24474 (Jan. 22, 2003) (citing EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at n.5 (Oct. 17, 2002)). 2020001331 4 administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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 finding no discrimination. 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 2020001331 5 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. 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. 2020001331 6 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 22, 2021 Date