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

Equal Employment Opportunity Commission

Nov 20, 2018

0120170401 (E.E.O.C. Nov. 20, 2018)

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

Sulema B.,1
Complainant,

v.

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

Appeal No. 0120170401

Agency No. IRS-15-1573-F

DECISION

On October 31, 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
September 16, 2016 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 decision.

ISSUES PRESENTED

1. Is Complainant’s appeal timely?
2. Was the Agency’s dismissal of one of the claims of the complaint for failure to contact an
EEO Counselor proper?
3. Has Complainant proven by a preponderance of the evidence that the Agency unlawfully
discriminated against her when it did not select her for one detail, declined to release her
for a detail for which she was selected, and did not select her for two vacant positions?

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.
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BACKGROUND

At the time of the complaint, Complainant worked as a Human Resources Assistant (HRA), GS-7,
at the Agency’s Human Capital Office in Chicago, Illinois. Complainant no longer works for the
Agency.

Complainant initiated EEO Counselor contact on August 19, 2015. On November 19, 2015, she
filed a discrimination complaint alleging that the Agency discriminated against her on the bases of
race (White), age (62), and retaliation for prior protected activity when:

1. In February 2015, the Agency did not detail her to a newly created Human
Resources Assistant position in the Executive Misconduct Unit (EMU);

2. In the summer of 2015, Complainant was selected for a detail to Leadership,
Education, and Diversity Services (LEADS) but management declined to release
her for the detail; and

3. On October 20, 2015, Complainant became aware that the Agency did not select
her for two Human Resources Specialist positions advertised under Vacancy
Announcement No. 15CE3-HCN0009-201-7-11-KD.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation, consisting of four volumes, and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time
frame provided in 29 C.F.R. § 1614.108(f), the Agency issued its decision pursuant to 29 C.F.R.
§ 1614.110(b). The Agency concluded in its decision that Complainant failed to prove that the
Agency had subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant argues that her appeal is timely. She continues to challenge the Agency’s articulated
reasons for its actions and the credibility of Agency officials. Complainant also argues that the
investigation was inadequate.

The Agency asserts that Complainant’s appeal is untimely and, also, that Complainant failed to
contact an EEO Counselor in a timely fashion regarding claim 1. The Agency urges that even if
the Commission declines to dismiss Complainant’s appeal as untimely or claim 1 for untimely
EEO Counselor contact, its decision should be affirmed.

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).
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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), 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 law”).

Timeliness of Appeal

EEOC Regulation 29 C.F.R. § 1614.402(a) requires that an appeal be filed within 30 days of receipt
of the Agency decision. If a complainant fails to file within the 30 days, the appeal can be
dismissed.

The Agency argues that the appeal must be dismissed because it was untimely. In this regard, it
asserts that the decision should be presumed to have been received by Complainant within five
days after it was mailed by the Agency to her address of record. The Agency also argues that
Complainant failed to keep the Agency informed of her change of address, although she was
required to do so and the Agency had also informed her of the requirement as evidenced by her
signature on the Notice of Rights and Responsibilities. 29 C.F.R. § 1614.105(b)(1).

In her appeal, Complainant, who moved from Illinois to Hawaii, stated that she received the
Agency’s September 16, 2016 decision on October 13, 2016. Complainant’s appeal was filed on
October 31, 2016. Complainant’s appeal was therefore filed within 30 days of her receipt of the
Agency decision.

The five-day mailing presumption is a rebuttable presumption. Delayed receipt can therefore be
considered. An envelope from the Agency to Complainant to her address of record in Illinois is
contained in the Agency’s “Administrative File” which was submitted by the Agency on appeal.
The envelope had the Illinois address crossed out. Affixed on the envelope was a U.S. Postal
Service forwarding label which is dated October 8, 2016, and which has Complainant’s address in
Hawaii.

Accordingly, we find, under the circumstances of this case, that the appeal is timely. Complainant
is reminded that she is required to notify the Agency and the Commission of her current address.
Failure to do so can result in the dismissal of the complaint on the grounds of untimeliness where
correspondence is sent to the address of record and there is a failure to provide a current address.

Preliminary Matter

Complainant has argued that the investigation was not adequate. We reject Complainant’s
argument. The record establishes that the complaint was appropriately investigated in a manner
consistent with EEOC MD-110, Chap. 6. There exists an appropriate factual record that allows a
reasonable fact finder to draw conclusions as to whether discrimination occurred.

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Untimely EEO Counselor Contact

The Agency urges that claim 1 be dismissed because Complainant failed to contact an EEO
Counselor within the requisite 45 days. 29 C.F.R. § 1614.107(a)(2). The Agency raises this matter
for the first time on appeal. The Agency had the opportunity to dismiss the complaint on these
grounds in its final decision but did not do so. Therefore, we will not entertain the dismissal for
the first time on appeal. Renee P. v. Dep’t of the Army, EEOC Request No. 0520160217 (June
17, 2016)(Commission declined dismissing complaint on grounds of untimely EEO Counselor
contact, noting that the agency had opportunity to dismiss in its final decision but failed to do so
and raised the issue for first time on appeal).

Claims Addressed on Merits

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). She must generally establish 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, 411 U.S. at 802
n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review, we conclude that the Agency did not discriminate Complainant on any basis or
subject her to disparate treatment. The Agency articulated legitimate, nondiscriminatory reasons
for its actions which Complainant has failed to show were pretext for discrimination.

Regarding claim 1, not having been selected for a detail to an HRA position in the EMU,
Complainant stated that she was more qualified than the selectee chosen for the detail. The selectee
was Black, younger than 40 years of age, and had had no prior protected activity. The responsible
management officials were Black. Complainant stated in her affidavit that the Agency had made
a concerted effort to recruit millennials. She also stated that most of the Labor Relations staff in
Chicago were Black.

The Agency’s articulated reason for not selecting Complainant for the detail was so that it could
share detail opportunities among HRAs in a fair manner. The detailee was one of four HRAs in
the Chicago/Detroit section who had not yet received a temporary promotion. Complainant, on
the other hand, had received a noncompetitive, temporary promotion to a GS-9 Labor Relations
Specialist position and also had a Management and Program Analyst detail in LEADS in 2015.

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The Supervisory HRS, who was Complainant’s supervisor, stated that though the position was not
posted, management had the option of announcing non-competitive positions which were not to
exceed 120 days. Complainant has not shown that the Agency’s reasons for the selection and why
the position was not announced were pretextual.

We next address claim 2, the detail to LEADS. Complainant was selected for the detail but her
Manager did not release her for operational reasons. The Agency’s articulated reason for not
releasing Complainant was that staff attrition had reduced the section’s ability to keep up with the
workload. While there were two other HRAs, one was already on a part-time, temporary
assignment and the other was on leave. Losing Complainant would negatively impact the
workgroup’s ability to provide customer service. Complainant had also previously completed
another detail. Also, the Workforce Relations Division (WRD) requested that all details end and
no new details begin because of increased workload and low staff. We find Complainant did not
show that there was discriminatory animus on the part of the Agency when it did not release
Complainant to go on a detail.

Claim 3 concerns Complainant’s nonselection to two of five positions advertised by the Agency.
Complainant applied for the position and was among the best qualified candidates for the GS-07
and GS-09 grade levels. The position announcement was for a Human Resources Specialist,
Employee and Labor Relations, in five states. In applying for the position, Complainant’s chosen
locations were Atlanta, Georgia and Austin, Texas. Complainant was referred to the selecting
officials at both sites for consideration.

We first address the Atlanta nonselection. The Atlanta selectee was Black, under 40, and with no
known participation in protected EEO activity. The selecting official explained that she made the
selection based on the criteria identified in the vacancy announcement which is contained in the
record. She considered the applicant’s managerial experience, knowledge of the union contract
and the National Treasury Employees Union (NTEU), and written and verbal communication
skills. The selecting official also found it beneficial if the applicant had been in management to
draw from that experience as a manager. In addition, prior experience of being a union steward
was also deemed beneficial in that it demonstrated the applicant’s experience in contract
interpretation and facilitating grievance meetings and oral replies. The selectee was chosen, not
for discriminatory reasons, but based on her experience and skills, including four years of
experience as a supervisor and six years as a union steward. On the other hand, Complainant did
not have the qualifications that the selecting official was seeking in the person who would occupy
the position in Employee and Labor Relations.

One way to prove pretext in a nonselection is for a complainant to show that her qualifications
were “plainly superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir.
1981); Complainant v. Dep’t of Labor, EEOC Request No. 0520120381 (June 25, 2015);
Complainant v. Soc. Sec. Admn., EEOC Appeal No. 0120132398 (Sept. 11, 2015). Complainant
has not done so. Absent discriminatory animus, we have consistently held that we will not second-
guess an agency’s personnel decisions or substitute our judgment for that of an agency. See
Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996).
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Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Tyra F.
v. General Svcs. Admn., EEOC Appeal No. 0120170252 (Apr. 4, 2018); Jamar F. v. Dep’t of
Defense, EEOC Appeal No. 0120170013 (Feb. 22, 2018). The focus of pretext inquiry is whether
an agency’s actions were motivated by discriminatory animus. We find none.

Regarding the application for the position in Texas, the Agency’s articulated reason was that
Complainant declined attending the interview and therefore removed herself from consideration
for selection. Complainant acknowledges that she failed to attend the interview. The articulated
reason was not shown to be pretextual.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s decision finding no discrimination is AFFIRMED.

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.
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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

November 20, 2018
Date