Rosemarie G.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Aug 22, 2018

0120162458 (E.E.O.C. Aug. 22, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rosemarie G.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120162458

Hearing No. 510-2016-00115X

Agency No. IRS-14-0680-F

DECISION

On July 22, 2016, 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
June 21, 2016, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked in a temporary position
as a Frontline Manager in the Wage and Investment Division, Accounts Management, Internal
Revenue Service, in Guaynabo, Puerto Rico. On October 14, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of color (light skin), age
(41), and reprisal (protected EEO activity)2 when: (1) she found out in July 2014 that her temporary

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.
2 The basis of Complainant’s reprisal claim is the initial EEO contact that occurred with respect to
the current EEO complaint on August 13, 2014.
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detail as a Frontline Manager was going to be extended instead of being made permanent;3 (2)
after initiating EEO contact, Complainant was given memoranda for failing to follow leave
procedures and performance feedback which was inaccurate; and (3) Complainant also was treated
differently with regard to leave and assignments.

After 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 EEOC Administrative Judge
(AJ). Complainant requested a hearing, but the AJ dismissed the hearing request because
Complainant failed to show cause for failing to appear at the initial conference on April 6, 2016.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

Complainant was selected for the Frontline Manager position in 2012 and it was designated as a
Not-to-Exceed (NTE) position. The record indicates the position was to last no longer than five
years. On or about July 18, 2014, Complainant was informed that her NTE position would not be
extended.

Claim 1 – NTE Position

According to Complainant, in or around July 2014, the Puerto Rico call site initiated a realignment
in which all seasonal employees had to be placed on furlough status. She contends that she was
informed that her NTE Frontline Manager position would not be extended and she, along with
another NTE Frontline Manager, was asked to return to her position of record, which was Lead
Service Contact Representative (LSCR). She further contends that two others remained in their
NTE Frontline Manager position even though they had been in such position for less time.
Complainant further asserts that during this transition, she was informed that she would be
covering for another manager’s extended military leave. However, another manager was
scheduled instead.

In addition, Complainant states that two NTE Frontline Manager positions were terminated after
the seasonal employees were furloughed but two other NTE managers (NTE1, Hispanic Black, 35
years old) and (NTE2, Hispanic White, 46 years old) kept their positions. She asserts that based
on Entry-on-Duty (EOD) dates, the other two NTE Frontline Managers should have been
terminated first.

Complainant further states that S2 specifically promised to put her on a team in his department.
She states that she had been given different responses to justify actions taken by management, such
as business decisions, then budget, among others.

3 Complainant clarified that the alleged discrimination was based on her being informed on July
18, 2014, that her NTE managerial position would not be extended.
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She states that the budget did not make sense because she was informed that if there was a
managerial position to cover, they would do anything possible to extend and protect her NTE
position and they continued to extend her NTE assignment.

Complainant’s third-level supervisor (S3) explains that she terminated Complainant’s NTE
Frontline Manager position in August 2014. S3 explains that she decided to collapse one
department and 14 teams in Puerto Rico in May or June 2014 and as a result, many temporary
managers had their details terminated. S3 also states that she simultaneously collapsed three
departments and 27 teams in Brookhaven, New York and one department and nine teams in
Cheektowaga, New York, which ended temporary managerial promotions for about 40 additional
employees.

S3 contends that she had no first-hand knowledge of any selections of permanent manager
positions prior to her arrival on January 28, 2014. She further states that when she had the
opportunity to fill a permanent manager position about six weeks after taking over in her position,
the new Operations Manager, who started in her position on February 23, 2014, recommended the
selectee and she followed the recommendation. S3 further notes that when she recently filled nine
permanent manager positions in Brookhaven, it was done by competitive announcement so that all
qualified candidates had the opportunity to be considered. She maintains that those were the only
permanent Frontline Manager positions filled since April 2014. She contends that the only
consideration was the lack of any business need for such positions in Puerto Rico in the summer
of 2014. S3 also asserts that Complainant’s color and age were not factors in her decisions.

Program Manager, Operation 4 (PM4) (Hispanic caramel/brown, age 47) states that Complainant
was temporarily assigned from Team 302, Department 3, to Team 101, Department 1, while one
of the permanent managers (M1) was out on temporary assignment as Department 2’s Manager.
Department 2 was “ramped down” on June 27, 2015, and M1 returned to her position as permanent
manager on Team 101, which left Complainant without a team and ended her NTE assignment.
PM4 also states that the temporary managers who remained in place were on teams that remained
intact and maintains that switching managers would have been hard on the front-line employees.
Since there was no compelling reason to remove the manager and disrupt the group, she chose to
retain the temporary managers with continuing groups, to minimize the level of change for the
front-line employees.

S2 denies that he had ever promised Complainant that she would have a permanent position
managing a team. He explains that a decision to convert a temporary appointment to a permanent
appointment is out of the scope of his supervisory level. He explains that he told Complainant that
if an opportunity arose that would allow her to keep her NTE detail as a manager, he would place
her in the detail. According to S2, Complainant’s detail as a NTE Frontline Manager ended on
August 10, 2014, at which time she returned to her position of record.

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Claim 2 – Memorandum

Complainant received a memorandum from her second-line supervisor (S2) stating she was absent
one day from 3:30 PM to 4:30 PM without notifying him or her team. Complainant contends that
she did not abandon her team but was only on her lunch break. She further asserts that she had
designated one of her subordinates as her Acting Team Lead earlier that day and he knew where
she was. Complainant also asserts that S2 gave her a Performance Feedback4 memorandum
notifying her of the failure to manage her workload properly, even though she allegedly was not
provided sufficient time to complete Departure Appraisals for her employees.

S2 asserts that Complainant was issued a memorandum because of her failure to follow office
procedures, and to remind Complainant of her managerial responsibilities. S2 also states that
Complainant had abandoned her work area without giving proper notice. He acknowledged that
he later became aware she was attending to a personal situation involving her vehicle and had
reported the matter to Security personnel. S2 states it was the first time in his career as a
Department manager that a team member had disappeared during duty hours without alerting him
or their team members. Regarding the performance feedback, S2 states that he issued the
memorandum because Complainant twice failed to comply with a directive requiring her to
complete Departure Appraisals by the due date of August 8, 2014. S2 asserts that all other
managerial personnel, including the other NTE Frontline Manager (NTEM3), completed the
assignment by the due date.

Claim 3 – Leave and Assignments

After Complainant’s NTE Frontline Manager position was terminated, she requested eight weeks
of Read Time5 to transition back to her LCSR position but was approved for only four weeks. She
states she was given a list of courses and a schedule for completing the courses, but the other NTE
Frontline Manager (NTEM3) who was sent back to a LCSR position was not given these
requirements. Complainant states that later she received a memorandum that informed her she
must return to her regular tour of duty beginning September 15, 2014, even though she would still
be working towards the completion of her reading assignment.6 Complainant’s first-line
supervisor (S1) (Hispanic/white, age 48), states that he supervised Complainant during her Read
Time but did not supervise NTEM3. He also states that he had no knowledge of what NTEM3
was permitted to do with respect to Read Time or taking courses.

4 The stated purpose of this memorandum was to counsel Complainant regarding the completion
of her managerial duties.
5 “Read Time” represents set aside time to read up on all technical and procedural information
pertaining to the position held by the employee to ensure the products and services provided to
customers are accurate. The record shows that Complainant had previously never performed the
duties of the LSCR position and felt that Read Time was necessary to successful fulfill the
requirements of the position to which she was transitioning.
6 Complainant would continue her Read Time on her regular tour of duty.
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The record shows that NTEM3 had more confidence than Complainant in her ability to perform
the LCSR position duties and did not seek much Read Time before taking over such duties.

Complainant also alleges she was not allowed to participate in Enhancement Day because it took
place on a day she had been pre-approved for leave. Complainant asserts that she was not allowed
to return approved leave even though the common practice in the office is that an employee has
the option to return any approved leave. PM4 asserts that since returning to her position of record
with a 1:30 PM to 10:00 PM tour of duty, Complainant had been requesting an accommodation to
work earlier due to child care needs and began requesting leave, which included the day on which
Enhancement Day was scheduled. PM4 explains that Complainant’s team manager (M2) was
going to be on leave that week, so he initially asked Complainant to keep her regular tour of duty.
However, M2 later did approve Complainant’s request to come in earlier. PM4 explains that when
M2 learned that Complainant wanted to cancel her leave request to participate in Enhancement
Day, he advised her that she needed to come in that week at her regular time of 1:30 PM so she
could cover the team in his absence.

In addition, Complainant states that she was also not provided the opportunity to participate in the
New Hires Instructor selection process. PM4 explains that the site provides assignments by pulling
from the Instructor Cadre pool. PM4 further notes that Complainant was considered part of the
pool because she had passed the training and because her position of record was LSCR. However,
PM4 explains that for Complainant to teach new hires, the requirement was for her to complete
CIT Refresher, which she had not done because she was assigned as an NTE Frontline Manager.
PM4 further states that Complainant had just come out of her NTE Frontline Manager position and
needed to become familiar in her position of record. She also notes that Complainant had requested
additional time, indicating that she did not feel that she was technically proficient to step into the
LSCR position at that time.

Complainant also asserts that on several occasions, when her manager was on approved leave, she
was not assigned to act as manager in his absence even though other managers assign their Lead
to do so in their absence. PM4 explains that Complainant was given various developmental
opportunities, and when her NTE Frontline Manager position was terminated Complainant was
given opportunities to act in her manager’s absence. However, PM4 explains that on at least two
occasions, when Complainant was given an acting Department Manager assignment, she took
unscheduled leave causing interruption of the workflow. S3 also states that when Complainant’s
start time changed from 1:30 PM to 10:00 AM to accommodate a child care need, it was not
practical for her to act for her manager since she was not available to the team members during
her team’s normal duty hours.

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, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
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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 absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing
a prima facie case by demonstrating that she 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. at 802 n. 13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 prove, by a preponderance of the evidence, that the reason proffered by
the Agency was a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993).

A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she 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); Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318.
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep't of Veteran Affairs, EEOC
Request No. 05960473 (Nov. 20, 1997). The Commission’s policy on retaliation prohibits any
adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a
complainant or others from engaging in a protected activity. See EEOC Enforcement Guidance
on Retaliation and Related Issues, EEOC No. 915.004 (Aug. 25, 2016).

Upon review of the record, we agree with the Agency’s findings that Complainant failed to show
that the Agency’s legitimate, non-discriminatory/retaliatory reasons for the employment actions
were a pretext or otherwise motivated by discriminatory/retaliatory animus. The record is devoid
of testimonial or documental evidence to support any assertion of pretext. In addition,
Complainant fails to allege any statement or conduct on the part of any responsible management
official that could be construed as evidence of discriminatory or retaliatory animus.

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 finding that Complainant
failed to present sufficient evidence of discrimination or reprisal with respect to each claim.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

August 22, 2018
Date