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

Equal Employment Opportunity Commission

Oct 25, 2018

0120170081 (E.E.O.C. Oct. 25, 2018)

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

Xavier P.,1
Complainant,

v.

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

Appeal No. 0120170081

Hearing No. 520-2015-00005X

Agency No. IRS-1306-99-F

DECISION

On September 29, 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 2, 2016 final order 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 order.

BACKGROUND

Complainant worked as a Revenue Officer, GS-1169-12, at the Agency’s Field Office in Paramus,
New Jersey. On December 14, 2013, Complainant filed an EEO complaint in which he alleged
that the Agency discriminated against him on the basis of race (Caucasian) by not promoting him
to a Supervisory Revenue Officer, GS-1169-13, position.2 He identified as the responsible
management officials a Supervisory Revenue Officer in his capacity as the reviewing official

1This 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 decision to promote the Selectee was made in July 2013, but Complainant did not find out
about it until September 18, 2013.
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(RO), the Territory Manager (TM), and the Area Manager in her capacity as the selecting official
(SO).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On July 13, 2015, the AJ assigned to the matter issued the parties a notice indicating his intention
to issue a summary judgment decision. The parties responded and, over Complainant’s objections,
the AJ issued a summary judgment decision in favor of the Agency on June 13, 2016. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the
Agency. Complainant argues that Agency officials gave conflicting and inconsistent statements
during the investigation and credibility issues remain. In addition, Complainant challenges the
reasons given for his non-selection and claims that the TM engaged in a pattern of discrimination.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

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, 802 (1973). As a first step, he must generally establish a prima facie case by
demonstrating that he was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed in this case, however, since the RO and the
SO articulated a legitimate and nondiscriminatory reason for choosing the selectee, namely that in
their assessment of the qualifications of the applicants, the selectee was among best-qualified while
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Complainant was not. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that this
explanation is a pretext for race discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by showing such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's
proffered legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Qpare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov.
20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008).

In this case, the SO and the RO both averred that while Complainant was highly qualified for the
position, he was not among the best qualified. The other applicants who were rated as best
qualifies had application scores of 95 and 100. IR 222, 265. The RO averred that Complainant
was not specific enough in identifying actions on his application that separated him from the other
candidates, and that Complainant did not communicate in his application narrative his knowledge
of specific collection programs. IR 75. The RO also averred that Complainant had a lower score
on his annual appraisal in comparison to those applicants who had made the best-qualified list. IR
75. On their most recent performance appraisals prior to the vacancy opening up, Complainant
had received an annual appraisal rating of “Exceeds Fully Successful” while the selectee and other
candidates who made the best-qualified list had received an annual appraisal rating of
“Outstanding.” IR 155, 161, 213, 262. Additionally, the RO noted that Complainant only had
acting management experience while the BQ candidates had actual permanent management
experience. IR 75. The RO further noted that while Complainant did provide an example of a
case he had worked, he did not address or communicate how the actions he took promoted
compliance on behalf of the taxpayer. IR 75. In addition, the RO pointed out that Complainant
did not complete the “Front-Line Readiness Program,” an assessment of managerial potential,
while the candidates who made the best-qualified list had completed that program. IR 75.

In nonselection cases, Complainant could demonstrate pretext by showing that his qualifications
for the position were plainly superior to those of the Selectee. Hung P. v. Dep't of Veterans Affairs,
EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant should bear in mind, however, that
agencies have broad discretion to choose among equally qualified candidates as long as the
selection is not based on unlawful considerations. Complainant v. Dep’t of Homeland Sec., EEOC
Appeal No. 0120141478 (Jul. 31, 2015). Beyond his own assertions, Complainant has presented
no evidence that contradict the determinations of the RO and the SO that the selectee was the best-
qualified candidate or which otherwise demonstrate that Complainant’s qualifications for the
Supervisory Revenue Officer position were plainly superior to those of the Selectee.

Other indicators of pretext include discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
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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. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). On appeal,
Complainant contends that there was a contradiction in the TM’s affidavit regarding the control
that she allegedly exercised over the selection process. He also argues that the TM, an African-
American, had demonstrated a pattern of excluding White males from career advancement
opportunities. The TM averred that she had been asked by the RO to have one of the first-line
supervisors under her authority review the applications for the supervisory vacancy, and that she
delegated this task to the RO without participating in the selection process herself. IR 83-84. The
TM had, on three occasions assessed Complainant’s readiness to assume managerial positions. In
the most recent evaluation, dated December 15, 2012, the TM had determined that Complainant
was ready in three of four elements and was a year or two away in the fourth. IR 28, 30, 32. We
find Complainant’s arguments insufficient to demonstrate a contradiction in the TM’s sworn
statements or any other indicator of pretext.

We therefore agree with the AJ that these unsupported and conclusory assertions are insufficient
to raise a genuine issue of material fact with respect to the motives of the RO and the SO in filling
the Supervisory Revenue Officer vacancy at issue in this complaint. As a result, we find that
Complainant failed to show that he was subjected to discrimination as alleged.

CONCLUSION

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

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.
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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.

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.

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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 25, 2018
Date