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

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022001251 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tasia C.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2022001251 Hearing No. 480-2020-00404X Agency No. IRS-19-1409-F DECISION On January 7, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 7, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Estate Tax Attorney at the Agency’s facility in Los Angeles, California. On October 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when, on June 24, 2019, she learned that she had not been selected for the Attorney- Advisor position advertised under Vacancy Announcement No. 19CE4-SB0364-0905-14-CL. 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. 2022001251 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, the Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that the AJ ignored numerous genuine issues of material fact. Complainant further argues that the Agency used a biased selection process which unfairly weighed the ranking categories to favor the selectee. ANALYSIS AND FINDINGS 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. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Our review of the evidence of record produced during the investigation reflects that it has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003) (AJ may issue a decision without a hearing only after determining that the record has been adequately developed). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 2022001251 3 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; Furnco Construction 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, 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 the personnel action at issue, 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); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The instant record reflects that, as part of the application process, candidates were required to answer a questionnaire which was then scored by computer based on a scoring system established by the Agency’s policy branch and subject matter experts. Based on the resulting scores, applicants were placed in quality groups: Best Qualified, Highly Qualified, and Qualified. The Selectee (under 40, male, unknown prior EEO activity) received a perfect score of 100. Complainant, with a score of 98, was also considered Best Qualified, along with four other candidates with scores ranging from 97.2 to 95.8. The six Best Qualified candidates were then considered by the Supervisory Attorney Estate & Gift Workload Selection and Delivery, Complainant’s first level supervisor, who was responsible for recommending a selectee. In considering the six applicants, the supervisor focused on nine categories, with corresponding point values, for a maximum score of 25. Some of the categories included: experience as the Whistleblower Coordinator, quality of experience with Whistleblower cases in the field, and experience at classification. Complainant received a score of 19. According to the supervisor, Complainant received the maximum points in most categories, but noted fewer points were given for her limited management experience (short details lasting no more than a week) and attendance at only one classification session in the last five years. Contrastingly, the Selectee scored 21/25, having performed as a manager for a 120- day detail and served two classification sessions. Additionally, based on her experience having supervised both Complainant and Selectee, supervisor considered Selectee to be a more independent worker. 2022001251 4 Supervisor noted that Complainant also struggled in memorandum drafting. As her top two selections, supervisor recommended Complainant and Selectee to the concurring official, Complainant’s second line supervisor, who agreed that Complainant required “a significant amount of direction and oversight” and had not worked at a GS-14 level as the Selectee had. Based on the concurring official’s recommendation, the Selecting Official chose Selectee for the vacancy. The burden now shifts to Complainant, to establish that the Agency’s proffered reasons are pretext for discrimination. Complainant disagrees with the ranking/scoring system used by the selecting official and argues that her performance in various assignments, include her detail as the Acting Whistleblower Coordinator, should have been giving more weight. To the extent Complainant challenges the Agency's process, we note that this is not evidence of a discriminatory motive. The record indicates that all applicants were measured according to the same criteria. We have consistently recognized that an agency has broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Moreover, the AJ noted that Complainant acknowledged making mistakes and “rookie errors” during her detail, admissions which were consistent with the selecting official’s observations. Complainant also asserts that her seniority made her more qualified because of the “vast difference between Complainant’s nine (9) years of experience versus selectee’s four (4)” as a subject matter expert. However, as the AJ correctly noted, a non-selectee’s seniority, standing alone, does not evidence discrimination. Complainant’s arguments of having a superior work history in contrast to that of the Selectee are unsupported by the evidence contained in the record and do not establish pretext. See Palmer N. v. Dep't of Defense, EEOC Appeal No. 0120140070 (March 18, 2016) (complainant's subjective assessment of his own qualifications is not evidence of pretext). In a non-selection case, a complainant may show that an employer's reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to those of the selectee. Wasser v. Dep't. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). However, Complainant has not done so here. 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2022001251 5 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). 2022001251 6 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 October 17, 2022 Date