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

Equal Employment Opportunity Commission

Oct 14, 2021

Appeal No. 2020005199 (E.E.O.C. Oct. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vivian D.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2020005199 Agency No. IRS-20-0292-F DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 1, 2020, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Examiner Technician, GS-05, at the Agency’s Internal Revenue Service in Austin, Texas. On March 30, 2020, Complainant filed her complaint alleging discrimination based on race (African American) and in reprisal for prior EEO activity when: 1. She was issued an “Unacceptable” annual performance appraisal rating on January 30, 2020, for the rating period between May 6 and December 31, 2019; 2. She was deprived of nightshift differential pay by transfer to the dayshift in July 2019; 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. 2020005199 2 3. She was required to work through lunch and unfairly charged annual and sick leave during Fiscal Year 2019 Pay Periods 13, 14, and 15; and 4. She was terminated as a probationary employee effective April 25, 2020. At the conclusion of the investigation, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The Agency indicated that Complainant was hired as a Tax Examiner Technician on May 3, 2019, subject to a one-year probationary period. Regarding claim 1, Complainant’s then supervisor (Supervisor A), who gave Complainant her performance rating for the period between May 6 and December 31, 2019, indicated that Complainant’s overall performance during the period at issue was Unacceptable because she was rated fully successful for two of her critical job elements (i.e., employee satisfaction-employee contribution and customer satisfaction- application) and was rated unacceptable for three of her critical job elements (i.e., customer satisfaction-knowledge, business results-quality, and business results-efficiency). Supervisor A stated that Complainant was unable to demonstrate an understanding of her job manual, database, and job tools; she took twice as long even after her training to complete her work while being assisted by an on-the-job instructor and a team lead; she was not able to work independently; and her production was below average. Regarding claim 2, the Agency stated that all employees, including Complainant, did not receive night differential pay while working daytime hours between 6:00 am to 6:00 pm. Complainant’s then supervisor (Supervisor B) indicated that she reviewed Complainant’s timesheets during the time period at issue, and they were correct. Regarding claim 3, Supervisor A denied he required Complainant to work during lunch. Supervisor A indicated that he completed a full breakdown of Complainant’s leave for the time period at issue and found it to be correct. Complainant’s leave summary for Fiscal Year 2019 pay period 13, 14, and 15 reveals that she took 8 hours of annual leave and 16 hours of sick leave on pay period 13; 1.3 hours of annual leave on pay period 14; and 10 hours of annual leave and 10.5 of sick leave on pay period 15. Regarding claim 4, Complainant’s manager indicated that he made a decision to terminate Complainant during her probationary period for failure to perform fully successfully in Business Results in quality and efficiency. The manager stated that in making his decision, he reviewed Complainant’s annual performance appraisal, management quality review notices, individual performance reports, and counseling forms. The record reveals that Complainant was issued “OF-4b Supplement” counseling forms concerning her performance. Specifically, from January to March 2020, Complainant’s work quality/accuracy and her efficiency time weighted scores were unsuccessful. 2020005199 3 In the counseling forms, Supervisor B notified Complainant that she needed to review her work and submit her work correctly with tools she had been trained to utilize. Complainant appeals from the Agency’s final decision. ANALYSIS AND FINDINGS 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), Chap. 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. 2020005199 4 Regarding claim 1, Complainant received Unacceptable rating for her performance rating for the period between May 6 and December 31, 2019, because she was ranked fully successful for two of her critical job elements and unacceptable for the remaining three critical job elements. Supervisor A stated that Complainant’s performance was poor and she had low production. Regarding claim 2, the Agency stated that Complainant was not entitled to receive night differential pay for her daytime work. The Agency also indicated that there was no error in Complainant’s timesheets during the time period at issue. Regarding claim 3, Supervisor A denied Complainant was required to work during her lunch. Supervisor A stated that there was no error concerning Complainant’s annual or sick leave for the time period at issue. Regarding claim 4, Complainant’s manager indicated that he terminated Complainant during her probationary period due to her poor performance. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020005199 5 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). 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. 2020005199 6 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 14, 2021 Date