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

Equal Employment Opportunity Commission

Oct 16, 2018

0120172029 (E.E.O.C. Oct. 16, 2018)

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

Valencia L.,1
Complainant,

v.

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

Appeal No. 0120172029

Agency No. IRS-14-0464-F

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 13, 2017 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.

BACKGROUND

During the period at issue, Complainant worked as an Internal Revenue Agent, GS-0512-13, at the
Agency’s Small Business/Self Employed Division in Fairview Heights, Illinois.

On July 19, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her on the bases of race (African-American) and in reprisal for prior
EEO activity when:

on or about May 12, 2014, she was not selected for the position of Supervisory
Internal Revenue Agent advertised under Vacancy Announcement Number 14CE7-
SBM0142-0512-05-PK.

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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After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. On April 7, 2017, the AJ issued a decision by summary judgment in
favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

On March 3, 2014, the Agency posted the Vacancy Announcement No. 14CE7-SBMO142-0512-
05-PK for the Supervisory Internal Revenue Agent position. On March 14, 2014, Complainant
applied for the subject position and was determined to be one of the four best qualified candidates.
Each candidate was interviewed by telephone, by an interview panel. The interview panel
consisted of a Territory Manager, Program/Territory Manager, and Supervisory Internal Revenue
Agent. Following the interviews, the panel agreed to recommend a named female candidate
because the panel determined that she demonstrated a better ability than the other candidates, as
well as having prior performance as a manager.

The former Director, Midwest Area-Emanation (unknown race, prior protected activity) was the
selected official for the subject position. The selecting official had been Complainant’s third level
supervisor from 2009 through May 2014. The selecting official selected the recommended
candidate for the subject position.

The selecting official stated that she chose the selectee based on the recommendation of the
interview panel and “her current performance as a manager in the Town & Country POD. Based
on the interview panel, she had the strongest application.”2

The selecting official stated that she did not select Complainant because she did not do well in her
interview. Specifically, the selecting official stated that the panel felt that Complainant did not
demonstrate that she was the best candidate for the subject position. The selecting official also
stated that she was told by the panel that Complainant did not answer interview questions because
“she drifted away from the question while giving her responses and she demonstrated her ability
as the agent rather than the manager level (i.e. her responses were in the “weeds” demonstrating
agent skills or working cases rather than manager skills of leading a group.”

Complainant asserted that that the interviews should have been only one factor considered in the
selection process. The selecting official explained that experience and qualifications were
considered in the application process “as well as the interview process, as candidates describe
relevant experiences in their responses to interview questions. Each candidate’s
experience/qualifications were considered in the interview panel’s recommendation for selection.”

2 The record reflects that the selectee worked at the Agency’s facility in Town & Country, Missouri
facility.
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Moreover, the selecting official stated that Complainant’s race and prior protected activity were
not factors in her decision to select the selectee for the subject position.

The Territory Manager (unknown race, prior protected activity) was one of the three panelists for
the subject position. The panelist stated that the interviews were conducted by telephone due to
limited travel funds, and all candidates and panelists were in different cities. The panelist stated
that each candidate was asked the same questions from a list of questions, and the panel took notes
and asked follow-up questions based on the candidates’ answers.

The panelist stated that following the interviews, he felt that a named female candidate should be
recommended for the subject position because she did well during her interview. The panelist
stated, however, the panel recommended a different named female candidate for the subject
position. The panelist acknowledged that the selectee had the best interview of all the candidates.

Further, the panelist stated that he felt that all of the candidates “brought good experience to the
table which was a factor in the selection process. I will also repeat, ‘the overall selection was
based on which candidate best demonstrated the ability to perform effectively on the job.’” The
panelist stated that he did not discriminate against Complainant based on her race and prior
protected activity.

The Program/Territory Manager (unknown race, prior protected activity) was also part of the
interview panel (Panelist 2). Panelist 2 stated that following the interviews, the panel discussed
who had the best interview. Specifically, Panelist 2 stated “we had a lot of discussion on who
should be recommended. It was between [selectee] and [female candidate]. Overall, we thought
[selectee] may have a slight edge because she was already in a managerial position. We thought
either one could do the job.” Panelist 2 stated, however, the selecting official had the final decision
on who to select for the subject position.

Panelist 2 stated that Complainant was not recommended for the subject position because she did
not answer many of the interview questions “even after being prompted. She went off on tangents
unrelated to the question.”

Based on this evidence, the AJ concluded the responsible management officials articulated
legitimate, non-discriminatory reasons for the selection decision made, which Complainant failed
to prove was pretext masking discriminatory animus. The Agency, in its final decision, adopted
the AJ’s decision.

The instant appeal followed. Complainant did not submit a brief on appeal.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See 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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

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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
October 16, 2018
Date