[Redacted], Ted L., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Download PDFEqual Employment Opportunity CommissionJun 2, 2021Appeal No. 2020002395 (E.E.O.C. Jun. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ted L.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020002395 Agency No. IRS-19-0517-F DECISION On February 4, 2020, Complainant 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 January 28, 2020, final decision concerning his 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 decision. ISSUES PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against on the basis of reprisal for prior protected activity as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Analyst (TA), GS-13, at the Agency’s Accounting Branch in Lanham-Seabrook, Maryland. On February 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII 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. 2020002395 2 of the Civil Rights Act of 1964 when, on December 6, 2018, Complainant was given an unacceptable performance review without any explanation or supporting documents. Complainant challenged a written mid-year review issued by his first-line supervisor (S1) which noted that Complainant's performance was unacceptable. Complainant stated that he has been in the same section for nine years, yet he had never previously received a mid-year progress review with an unacceptable rating. Complainant alleged that he was not asked to provide a mid-year self-assessment. Complainant stated that, after the evaluation, he asked S1 to provide him with written documentation to support the review beyond the statements written in the review itself and that S1 denied Complainant’s request. Complainant argued that the mid-year review was in retaliation for his prior protected activity. Complainant also argued that the mid-year progress review was presented to him orally and handed to him to sign on November 30, 2019, but that S1 failed to give him a hard copy to keep until December 6, 2019. Complainant contended that this made the review untimely and that the tardy provision of a hard copy further supports his contention that the review was in retaliation for prior protected activity. Complainant stated that three other TAs received higher ratings in the past year on their annual performance evaluations (TA1, TA2, and TA3). Complainant stated that TA3 also engaged in prior protected activity. Complainant noted that the three identified TAs were all rated on the same five Critical Job Elements (CJEs) as he. Complainant stated that, in the past year, another TA (TA4), who Complainant indicated also engaged in prior EEO activity, was given a lower rating than he received. S1 acknowledged awareness of Complainant's prior protected activity in which S1 was involved. S1 asserted that the written progress review at issue carefully explained why Complainant's performance was unacceptable at the point the review was issued. S1 also stated that Complainant was given the opportunity to participate in the process by filing a self-assessment, but Complainant declined to participate. S1 asserted that the mid-year progress review spoke for itself, providing very specific information detailing the weaknesses in Complainant's performance and explaining exactly how Complainant’s performance could be improved. S1 noted that Complainant never provided anything to rebut the assertions stated in the written mid- year progress review. S1 stated that he evaluates the performance of 10 TAs under his supervision. He stated that TA4 and another member of S1’s team (TA5) received performance ratings that were the same as or lower than Complainant's rating. S1 noted that Complainant has been on S1’s team since 2010, and that he has never identified any work performed for which Complainant was not given appropriate credit. S1 stated that he has always judged Complainant solely on Complainant’s performance. S1 noted that Complainant has received very competitive annual ratings despite the fact that Complainant has done nothing to improve his performance or his assigned program. S1 stated that there has been a consistent pattern of others in the group being called upon to handle issues related to the program assigned to Complainant. 2020002395 3 Included in the record is the written mid-year progress review which reflects that, as of mid-year, Complainant was failing three CJEs. The review indicates that Complainant was failing CJE 1 - Employee Satisfaction - Employee Contribution; CJE 3 - Customer Satisfaction - Application; and CJE 4 - Business Results - Efficiency. Also, the mid-year review states that S1 and Complainant have had several conversations relating to Complainant's performance, with S1 providing Complainant with written documentation aimed at helping Complainant succeed in his assignments. The document notes that, on several occasions, S1 had asked Complainant to provide written documentation to demonstrate why Complainant was unable to complete his assignments in a timely manner, but Complainant failed to provide that information to S1. The mid-year review also notes that, as of the date of the review, Complainant had several outstanding assignments with a direct impact on a particular program for which Complainant had the sole responsibility. Explanations in the review indicate that Complainant was repeatedly asked to respond to employee suggestions, provide input in response to emailed correspondence related to legislative changes for his program, and to update a particular section of the Internal Revenue Manual (IRM), which was Complainant’s primary responsibility. However, as of November 30, 2018, Complainant had not taken the necessary action on any of these critical issues. In the mid-year review, S1 warned Complainant that, if Complainant continued at the noted level, Complainant’s next annual rating would be lower than Complainant’s previous ratings. S1 also set forth specific expectations and offered assistance and training to help Complainant improve Complainant’s performance. The record reflects that Complainant signed the document with a notation stating that Complainant totally disagreed with the content of the mid-year review. 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant contests the FAD; reiterates his allegations; and introduces additional comparators, some of whom, Complainant explains, rated higher than he, performed at his same level, or performed at lower levels than Complainant. Complainant requests that the FAD be reversed, and a finding made in his favor.2 2 Complainant alleges on appeal that the FAD omitted his allegation in his formal complaint regarding additional work responsibilities. We note the Agency advised Complainant of the claims accepted for investigation in its Acknowledgment Letter dated March 4, 2019. The letter instructed Complainant to inform the Agency if the claim was not properly formulated otherwise 2020002395 4 In its Appeal Brief, among other things, the Agency reiterates its FAD explanations. The Agency asserts that Complainant has not raised any issues on appeal that merit a reversal of the FAD, adding that the record is devoid of evidence that the Agency’s legitimate, non- discriminatory reasons for the mid-year review were pretext for reprisal. The Agency requests that the FAD be affirmed. 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, 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 lawâ€). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must initially establish a prima facie case by demonstrating that he 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. 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). To ultimately prevail, a 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 incorrect within five days of receipt of the notice. There is no indication that Complainant informed the Agency of any concern regarding the formulation of the claim to be investigated. Therefore, we find that Complainant waived his objection to the Agency’s Statement of Accepted Issues because the record indicates that Complainant was provided opportunities during the EEO process to raise this objection but failed to do so; and Complainant may not raise these objections for the first time on appeal. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120091221 (Jan. 14, 2011) (declining to address disability as a basis of discrimination on appeal where the complainant failed to object to the Agency’s framing of the issue within the seven-day window stated in the issue acceptance letter); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090309, (Apr. 9, 2009) (indicating that complainant waived her right to object to Agency’s omission of a claim in the issue acceptance letter, and could not raise the objection for the first time on appeal). 2020002395 5 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s low mid-year review rating. S1 explained, and the record reflects, that Complainant’s low rating was based on Complainant’s performance during the rating period, including uncompleted assignments that affected Complainant’s rating. In an effort to show pretext, Complainant disagreed with S1’s explanations, indicating that he was never informed of any performance deficiencies prior to the mid-year rating he received. Complainant contended that S1 never provided requested documentation of his performance prior to the low rating he received. Complainant also identified comparators who he indicated had received more favorable treatment. However, the record reflects, and Complainant himself indicated, that while some of the comparators received higher ratings (including one comparator who had engaged in prior EEO activity), others were rated at the same level or lower than Complainant. The record also reflects that Complainant received a written warning, and a discussion, from S1 about his poor performance and suggestions on how to improve. Complainant disagreed with S1’s testimony but presented no evidence to refute that testimony. Nor did he provide any documentation or other support to buttress his arguments to prove that the record in this case is not worthy of credence. Moreover, Complainant failed to present any Agency policy that S1 violated when S1 did not provide requested documentation to Complainant; he did not show that such policy existed and that S1 inconsistently applied the policy to Complainant. The Commission has posited that Complainant may demonstrate pretext - that the Agency's explanation for its action(s) as alleged is not the real reason but rather a "cover" to disguise unlawful discrimination - by offering credible evidence of one or more of the following: discriminatory statements or past personal treatment attributable to the Agency's responsible management official(s); comparative or statistical data showing differences in treatment across particular racial, ethnicity, sex-based, age-related, disability-related, or other statutory EEO- related lines; unequal application of Agency policy, deviations from standard procedures without explanation or justification; and/or inadequately explained inconsistencies, incoherencies, or contradictions in the evidentiary record. Lenny W. v. U.S. Postal Serv., EEOC Appeal No. 0120160470 (Apr. 5, 2018), (citing Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007)); Natalie F. v Dep't of Veterans Affairs, EEOC Appeal No. 0120150749 (Apr. 27, 2017); Melissa F. v. U. S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Here, Complainant failed to demonstrate pretext, and his claims fail. 2020002395 6 We note Complainant’s remaining contentions on appeal. However, because Complainant did not request a hearing or avail himself of the discovery process which would have allowed for an examination of the credibility or lack thereof of S1’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. Therefore, we find that Complainant has failed to demonstrate by a preponderance of the evidence that retaliation occurred. 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 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. 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). 2020002395 7 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 June 2, 2021 Date Copy with citationCopy as parenthetical citation