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

Equal Employment Opportunity Commission

Nov 13, 2018

0120170357 (E.E.O.C. Nov. 13, 2018)

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

Val L.,1
Complainant,

v.

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

Appeal No. 0120170357

Hearing No. 510-2015-00440X

Agency No. IRS-14-0796-F

DECISION

On October 28, 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 27, 2016, 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

1. Whether the Agency properly dismissed Complainant’s allegation of harassment.
2. Whether the Agency discriminated against Complainant based on his color, race, sex, and
in retaliation for prior EEO activity, when his manager allegedly told his coworkers that
associating with him might negatively impact their careers; and when it did not select him
for two positions.
3. Whether the Agency retaliated against Complainant when it interviewed him after he
alerted the Commissioner of the Internal Review Service (IRS) to alleged discrimination.

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 events giving rise to this complaint, Complainant worked as a Revenue Officer at
the Agency’s Small Business/Self-Employed Division in Plantation, Florida. From 2005-2008,
Complainant’s supervisor was S1, and from 2008-2013, Complainant’s supervisor was S2.
Complainant’s wife (CW) also worked at the Agency, and both worked within the chain of
command of the Territory Manager (TM) (African American, black, male). Complainant stated
that CW met with TM on or around February 9, 2012, and TM stated, “White people are so stupid.”
Complainant also stated that he and his wife are the only mixed-race couple at work, and that TM
stated that CW was Complainant’s “rebound.” ROI at pg. 580.

On August 1, 2014, the IRS Commissioner conducted a Town Hall at the Plantation location.
Complainant asked the Commissioner, “[w]hen is the management intimidation and bullying
going to be stopped at the Plantation Post of Duty?” Complainant gave the Commissioner’s Aid a
letter from himself, and another from CW. Both letters posed the same question Complainant asked
at the Town Hall meeting. On August 5, 2014, the Acting Area Director (AAD) (White, white,
female), met with Complainant, CW, the Union President (UP), and TM to discuss their concerns.
ROI at pgs. 587-588, 1519, 2224-2227.

On August 6, 2014, Complainant stated that a coworker (C1) stated that he would no longer eat
lunch with Complainant because TM warned C1 to distance himself from Complainant. ROI at
pg. 579. On September 2, 2014, Complainant was interviewed by Treasury Inspector General for
Tax Administration (TIGTA) Special Agents.2 Complainant stated that he and CW have had issues
for the past eleven (11) years. For example, CW’s former manager “gave them a disturbing stare.”
Complainant also stated that they met with AAD, who suggested a group meeting to have an open
discussion regarding their issues; Complainant and CW declined the offer. ROI at pgs. 1694, 2667-
2672.

On September 11, and 12, 2014, AAD again met with Complainant, CW, UP, and TM to discuss
the couple’s allegations. ROI at pg. 589. Following the meeting, AAD met with C1, and two other
coworkers, C2 and C3, to ask why they stopped eating lunch with Complainant. ROI at pg. 2218.

On October 10, 2014, Complainant learned that he was not selected for the Supervisory Revenue
Office (SRO) position (Vacancy Announcement No. 14CW3-SBM1569-1169-6-ED). ROI at pg.
1630. On December 23, 2014, Complainant learned that he was not selected for the Disclosure
Enforcement Specialist (DES) position (Vacancy Announcement No. 14CW5-PGN1414-1801-12-
13S). ROI at pg. 1662.

On December 5, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of color (white), race (Caucasian), sex (male), and reprisal
for prior protected EEO activity under Title VII when:

2 CW was also separately interviewed by TIGTA Special Agents.
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1. in early August 2014, TM allegedly warned Complainant’s coworkers that
associating with him might negatively impact their careers; and

2. Complainant was not selected for two positions: (1) Supervisory Revenue Office in
October 2014; and (2) Disclosure Enforcement Specialist in December 2014.3

Complainant also alleged that he was retaliated against when:

3. TIGTA Special Agents interviewed him after he alerted the Commissioner of the
IRS to alleged discrimination.

In its letter of partial acceptance/dismissal of Complainant’s complaint, the Agency dismissed
Complainant’s claim of a hostile work environment, which detailed several incidents dating back
to 2005. The Agency noted that the August 2014 event was timely, and accepted it for
investigation. However, the Agency found that the earlier events were not part of an “ongoing
pattern of discrimination,” and that four incidents over a six-year period do not demonstrate a
frequency which amounts to an atmosphere of abuse. Additionally, the Agency noted that four
different actors were involved, and that there was a three-year gap between the 2011 incident, and
the timely August 2014 incident.

At the conclusion of the investigation,4 the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC 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
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

The Agency found that Complainant had not established a prima facie case of discrimination based
on color, race, or sex for claims 1 and 3. The Agency determined that viewing the evidence in the
light most favorable to Complainant, he had established a prima facie case of discrimination based
on color, race, and sex for claim 2. The Agency also found that Complainant had presented a prima
facie case of reprisal discrimination.

3 Complainant also initially alleged that he was discriminated against when he was not selected for
a Revenue Officer position (Vacancy No. 14CW3-SBB1212-1169012-KH) in September 2014.
However, Complainant stated in his affidavit that he did not apply for this position. ROI at pg.
581.

4 The Agency consolidated the investigation of Complainant’s complaint with CW’s complaint
(Agency No. IRS-14-0795). CW also appealed the Agency’s final decision of her complaint.
EEOC Appeal No. 0120162824 (Feb. 23, 2018).
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The Agency then found that the management officials articulated legitimate, nondiscriminatory
reasons for their actions. For claim 1, TM denied warning Complainant’s coworkers against
associating with him, and the coworkers stated that they personally decided to distance themselves
from Complainant after he made a “spectacle” in front of the Commissioner.

Regarding claim 2, the Agency determined that the six officials who rated Complainant’s
applications never met him, and they had no knowledge of his prior EEO activity. Additionally,
the selecting officials did not discriminate against Complainant because his applications were not
referred to them. For claim 3, the Agency found that Agency officials investigated Complainant’s
allegations in accordance with its policy.

The Agency then determined that the record did not contain any evidence calling the Agency’s
explanations into question. The Agency found that Complainant did not present any corroborating
evidence to support his assertion that TM instructed his coworkers to avoid him. For claim 2, the
Agency found that a side-by-side comparison of Complainant’s application with the selectees’
applications did not prove that his application was plainly superior. The Agency also noted that
there was no evidence showing that the TIGTA investigation was retaliatory, since it was based
on Complainant’s allegations made during the open Town Hall meeting.

The Agency concluded that Complainant had not presented sufficient evidence to prove pretext
for discrimination; and found no violation of Title VII. Complainant filed the instant appeal, and
submitted a brief in support of his appeal on January 27, 2017.5 The Agency did not file a response.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency improperly dismissed his hostile work
environment claim. Complainant states that he has suffered from ongoing and unrelenting
harassment from coworkers and managers, and that the Agency failed to consider numerous
incidents. Complainant also alleges that he could have shown the “sufficient nexus” through the
investigation process, and that his hostile work environment allegation should be reinstated.
Complainant also notes that his allegation is timely since there is no “three-year gap” in the events,
and that he contacted the EEO office within 45 days of the last incident of harassment.
Complainant argues that the Agency improperly fragmented his claim, and prevented him from
showing a comprehensive harassment claim. Complainant also alleges that he produced sufficient
evidence showing that he was subjected to a hostile work environment due to his protected
categories, and should prevail on this claim.

Complainant alleges that he has established a prima facie case of discrimination based on color,
race, sex, and in reprisal for prior EEO activity; and has shown pretext for discrimination.
Specifically, for his reprisal claim, Complainant states that he was subjected to adverse treatment
that would deter others from engaging in protected activity, such as the TIGTA investigation and
isolation from his coworkers.

5 Complainant requested, and was granted, an extension to file his brief through January 27, 2017.
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With regards to pretext for discrimination, Complainant argues that TM’s “racially charged”
comments show discriminatory animus. Additionally, Complainant states that despite reporting
harassment numerous times, no action was taken to resolve his concerns.

ANALYSIS AND FINDINGS

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 law”).

Dismissal of Hostile Work Environment Claim

On appeal, Complainant argues that his hostile work environment claim was improperly
fragmented and dismissed, but that he established a set of allegations that, if proven, could support
a claim of a hostile work environment. Complainant alleges that the Agency took Complainant’s
information and reduced it to only seven incidents, spanning from 2005, through 2011, which
failed to include numerous incidents with S2. Complainant also argues that the Agency improperly
fragmented his claim, and prevented him from presenting an “integrated and coherent” claim.
Complainant states that he has consistently asserted that the harassment was ongoing, and that the
Agency’s dismissal of his claim was improper.

We find that the Agency’s dismissal of Complainant’s harassment claim was proper. After
carefully reviewing Complainant’s documents submitted to the EEO counselor, we find that the
vast majority of the harassing incidents were attributed to S1 and S2, who have not been
Complainant’s supervisors since 2008 and 2013, respectively. Complainant also alleged additional
isolated incidents of harassment by others in 2010 and 2011. Even taking these allegations as true,
we find these incidents too disconnected in time, and factually distinct, to constitute one hostile
work environment claim. The allegations in the instant complaint are against TM, the selecting
officials for the two vacancy positions, and those involved in the TIGTA investigation.
Accordingly, we affirm the Agency’s dismissal of Complainant’s harassment allegation.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).

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For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his color, race, sex, and in reprisal for prior EEO activity, we find that the Agency articulated
legitimate, nondiscriminatory reasons for their actions. For claim 1, TM denied warning
Complainant’s coworkers that associating with him may negatively impact their careers. ROI at
pg. 2110. AAD stated that she met separately with the named coworkers to ask why they stopped
eating lunch with Complainant. AAD stated that C1 stated that he did not appreciate what
Complainant said, and stopped asking Complainant to join them for lunch. AAD stated that C2
stated that he was embarrassed by Complainant’s remarks, and was concerned that people thought
that Complainant’s remark was about C2. AAD stated that C3 stated that he was uncomfortable
after hearing Complainant’s comments, and that he did not want to eat lunch with Complainant “if
that was how [Complainant] thought.” AAD stated that all responded “no,” when asked if TM
encouraged them to distance themselves from Complainant. ROI at pg. 2218.

For claim 2, the record shows that those involved with reviewing and ranking Complainant’s
applications did not know him. ROI at pgs. 2770, 2773, 2780, 2784, and 2786. Complainant was
ranked last with a score of 81.70 for the SRO position, out of 36 candidates. The selectees’ scores
ranged from 96.70 to 98.50. ROI at pgs. 2356-2357. AAD stated that she was the selecting official
for the SRO vacancy, but that Complainant did not rank high enough to be interviewed; and that
she made her selection based on the recommendations of the interview panel. ROI at pg. 2258. For
the DES position, the selecting official (SO) stated that he did not know Complainant, and was not
aware of Complainant’s protected categories. SO also stated that Complainant’s application was
not referred to him; and that he chose the selectee because she possessed strong IRS organization
and technical knowledge, in addition to specialized Child Support experience, which made her the
best candidate for the position. ROI at pgs. 2775-2776.

For claim 3, the record shows that someone in the Commissioner’s Office forwarded a copy of
Complainant’s August 1, 2014, note to TIGTA for follow-up action. ROI at pgs. 2667-2670. TM
and AAD denied any knowledge of, or involvement in, the TIGTA investigation. ROI at pgs. 2111,
and 2221.

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We find that Complainant has not provided any evidence showing that the reasons were pretext
for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer’s proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.

On appeal, Complainant argues that TM’s comments to CW show discriminatory animus. TM
denied making such comments. ROI at pg. 2108. Additionally, TM and Complainant’s coworkers
asserted that TM did not state that they should disassociate from Complainant. Complainant
withdrew his request for a hearing before an EEOC Administrative Judge, and, as a result we do
not have the benefit of an Administrative Judge’s credibility determinations of the witnesses in
this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the
alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to
meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept.
13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew
his request for a hearing and credibility determinations were unable to be made): Brand v. Dep't
of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish
that his coworker made offensive comments in a “he said, she said” situation where complainant
requested a final decision and an Administrative Judge did not make credibility determinations).
In this case, Complainant has not proven that TM made the alleged comments, or that he was
motivated by an unlawful intent.

We also find that Complainant has not shown pretext for discrimination for claim 2. In a non-
selection case, pretext may be found where the complainant’s qualifications are plainly superior
to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981);
Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Complainant has not
shown any evidence that his qualifications were plainly superior to those selected for the SRO or
DES positions. On appeal, Complainant also argues that he was discriminated against when he
was not selected for a Revenue Officer position in September 2014. However, the record shows
that Complainant confirmed that he did not apply for such position. ROI at pg. 581.

For claim 3, Complainant argues that he never requested a TIGTA interview. However, we note
that an agency has a duty to investigate allegations of discrimination promptly so that it could
respond appropriately. See Lelah v. U.S. Postal Serv., EEOC Appeal No. 0120150363 (Feb. 8,
2017) (When an agency becomes aware of alleged harassment, it has a duty to investigate such
charges promptly and thoroughly); see also Rogers v. Department of Defense. EEOC Request No.
05940157 (February 24, 1995) (claim which arose from the agency’s investigation of a complaint
of harassment, failed to state a claim, since the agency was legally obligated to investigate a
complaint of harassment). When Complainant alerted the Commissioner of his allegations,
verbally and in writing, the Commissioner took appropriate action to have the allegations
investigated. We do not find that there is any evidence showing that the TIGTA investigation was
conducted to retaliate against Complainant.

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We find Complainant has not shown by a preponderance of the evidence that the Agency
discriminated against Complainant based on his color, race, sex, or in reprisal for prior EEO
activity when TM allegedly told his coworkers not to associate with him; and when it did not select
him for the SRO and DES positions. We also find that the Agency did not retaliate against
Complainant when TIGTA Special Agents interviewed him in response to his complaint raised to
the Commissioner.

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
has not shown that the Agency discriminated against him based on his color, race, sex, or in reprisal
for prior EEO activity; and its dismissal of Complainant’s allegation of a hostile work
environment.

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.

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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.
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 13, 2018
Date