Valorie M., Complainant,v.Jacob Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120143240 (E.E.O.C. Mar. 1, 2016)

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

Valorie M.,
Complainant,

v.

Jacob Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120143240

Hearing No. 410-2013-00270X

Agency No. IRS-12-0318

DECISION

Complainant filed an appeal from the Agency’s August 28, 2014 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Seasonal Tax Advisory Specialist at the Agency’s Wage and
Investment Service Bureau in Atlanta, Georgia. On June 2, 2012, she filed an EEO complaint in
which she alleged that the Department Manager, her first-line supervisor (S1) and the Territory
Manager, her second-line supervisor (S2) discriminated against her on the bases of race (African
American) and sex (female) by furloughing her on July 25, 2011. At the conclusion of the
ensuing investigation, the Agency notified Complainant of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainant’s timely request, the AJ held a hearing on June 30, 2014, and issued a bench
decision the same day. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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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S1 and S2 averred that the decision to furlough seasonal employees was made at the national
level and their responsibility was to ensure that management followed the procedures prescribed
by Article 12 of the collective bargaining agreement (CBA), which addresses performance
appraisal ratings for seasonal employees, Article 14, which addresses the release and recall of
seasonal employees, and Article 15, which addresses how layoffs among seasonal employees are
determined. Investigative Report (IR) 117, 151, 153. They further averred that as a result of a
directive issued by Field Assistance in response to a lack of available work, they identified six
seasonal employees who were to be furloughed. IR 15-16, 152. Four of the six, including
Complainant, were Black females, one was a Hispanic female and one was a Black male.

In making the determination as to who would be furloughed pursuant to Article 15 of the CBA,
S1 had assigned the six seasonal employees scores based on each employee’s most recent
performance reviews and seniority:

Employee Race & Gender Rating
Comparative 1 Black Female 6.27
Comparative 2 Hispanic Female 6.00
Comparative 3 Black Female 5.47
Complainant Black Female 5.47
Comparative 4 Black Female 5.07
Comparative 5 Black Male 4.40

IR 126-27, 177; Hearing Transcript (HT) 14-15, 128-29. Complainant’s combined score
included three points for seniority while Comparative (2)’s combined score included one point
being awarded for seniority. According to S2, Comparative 1 opted for a voluntary furlough
even though she had the highest rating. Comparatives (4) and (5) were furloughed on June 4,
2011. IR 126. Complainant and Comparatives (2) and (3) were slated to be furloughed on that
date as well, but were notified on May 27th, 2011, that they would be permitted to remain on the
rolls until further notice due to the availability of additional work. IR 103, 107. Since
Complainant received a lower overall score than Comparative (2), she was eventually furloughed
ahead of Comparative (2). HT 100, 104-105, 128-132, 144.

S2 averred that he requested permission to keep Complainant and Comparatives (2) and (3) on
the payroll, and that through an email he had received on July 25, 2011, he was informed that he
would only be able to keep two of the three until September 30th,, one of whom would be
Comparative (2). Although Complainant and Comparative (3) were tied in their ratings, the
CBA required the tiebreaker to go to the employee with the earlier entry-on-duty date, which was
Comparative (3). Complainant was released on July 25, 2011, while Comparatives (2) and (3)
were extended through September 30th. IR 116-17, 134-36, 152, 179. Complainant was
eventually recalled under a new seasonal agreement. IR 95.

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STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving employee furloughs
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would have
to prove, by a preponderance of the evidence, that either S1 or S2 was motivated by unlawful
considerations of her race or sex when they furloughed her. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

Complainant can do so in a circumstantial-evidence case like this one by presenting documents
or testimony tending to show that the reason articulated by S1 and S2 for furloughing her is
pretextual, i.e., not the real reason but rather a cover for race or sex discrimination. St. Mary’s
Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of
pretext can take the form of discriminatory statements or past personal treatment attributable to
S1 or S2, comparative or statistical data showing differences in treatment across racial or gender
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12,
2015).

When asked by the investigator why she believed that she had been discriminated against when
she was furloughed, Complainant initially responded that no reason was given for the furlough
and that the furlough was an intentional effort to discriminate against her, as demonstrated by the
fact that the performance rating she received did not reflect the fact that she had many more
years of experience than Comparative (2). IR 93, 95. This contention is undercut by the fact that
S1 accounted for Complainant’s seniority and incorporated it into her score under the formula
prescribed by Article 15 of the CBA.

Complainant also challenges the Agency’s furlough decision solely as it pertains to the retention
of Comparative (2). She contends that the Agency violated its own policy by retaining
Comparative (2) instead of her. HT 102. The AJ found, however, that the Agency released the

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employees with the lowest scores first as the policy required, that S2 was successful in retaining
Complainant beyond her original departure date, and that the Agency eventually rehired
Complainant under a new seasonal agreement.

Complainant made numerous other arguments as well, particularly with respect to S1’s
utilization of Comparative (2)’s departure rating in determining whether or not Comparative (2)
would be retained. At the hearing, S1 testified that when an employee transfers or gets a new
supervisor, the previous supervisor issues a departure rating, regardless of when the annual rating
of record is due. If the transfer occurs within the last 60 days of the rating period, then the
transferred employee’s departure rating becomes the annual rating of record. Comparative (2)
transferred into Complainant’s section on November 8, 2010, after having received a departure
rating from her previous supervisor for the period that ended on October 31, 2010. Comparative
(2)’s annual rating was due on December 30, 2010. HT 19-24, 28-29, 39-41. The AJ found that,
in accordance with Article 12 of the CBA, S1 properly utilized Comparative (2)’s departure
rating for the purpose of determining retention priority under Article 14 exactly in the prescribed
manner.

In reaching a decision in favor of the Agency, the AJ had made an extensive number of factual
findings, based largely on the testimony of S1 and S2. The AJ determined that the S1 and S2
were highly credible witnesses and accorded their affidavit and hearing testimony that they
adhered to the provisions of the CBA in determining who would be furloughed great weight. An
AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (August 5, 2015).
And on this crucial issue, Complainant has not provided evidence of any of the indicators of
pretext described above beyond her own assertions. She has not submitted any sworn
statements from other witnesses or documents that contradict the explanation provided by S1 or
S2, or which call their veracity into question. We can therefore find no basis upon which to
disturb the AJ’s credibility determination regarding the hearing testimony of S1 and S2.
Ultimately, we agree with the AJ that Complainant has not sustained her burden of proof with
respect to her claim of employment discrimination in connection with the decision to furlough
her on July 25, 2011.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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

March 1, 2016
Date