Zachery V.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120142512 (E.E.O.C. Apr. 8, 2016)

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

Zachery V.,1
Complainant,

v.

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

Appeal No. 0120142512

Hearing No. 531-2013-00308X

Agency No. IRS-13-0035-F

DECISION

Complainant filed an appeal from the Agency’s June 2, 2014 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 Management and Program Analyst at the Agency’s Applications
Development Business Office in Lanham, Maryland. On November 6, 2012, Complainant
filed an EEO complaint in which he alleged that the Acting Manager, who served as his first-
line supervisor (S1), discriminated against him on the bases of race (African-American) and
reprisal (a previously filed EEO complaint concerning his performance appraisal) by notifying
the Office of the Treasury Inspector General for Tax Administration (TIGTA) that
Complainant had recorded telephone conversations that he had with her. In an email to S1
dated May 22, 2012, Complainant informed S1 that he had recorded their telephone
conversations. Investigative Report (IR) 82. S1 reported Complainant’s conduct to her
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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immediate supervisor, the Customer Service Domain Director, who directed her to notify
TIGTA. IR 72, 75, 79, 82, 86, 88.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Although Complainant timely requested a hearing, the AJ assigned to hear the case
granted the Agency’s December 19, 2013 motion for summary judgment over his objections
and issued a decision on April 23, 2014, without holding a hearing. 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.

ANALYSIS AND FINDINGS

To warrant a hearing on his disparate treatment claim, Complainant would have to present
enough evidence to raise a genuine issue of fact as to whether S1was motivated by unlawful
considerations of his race or previous EEO activity in connection with the incident at issue.
See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In circumstantial-
evidence cases such as this, Complainant can raise a triable issue regarding motivation by
presenting documents or sworn testimony from other witnesses tending to show that the
reasons articulated by S1 for her actions were a pretext, i.e., not the real reason but rather a
cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993).
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. Opare-Addo v.
United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request
for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

When asked by the EEO investigator why he believed that his race and previous EEO activity
were factors in S1’s decision to report him to TIGTA, Complainant replied that race is a factor
in every facet of American life and that TIGTA is a gestapo-like organization that harasses
employees. IR 60-62. Beyond this vague and unsupported assertion, Complainant has not
submitted any sworn statements from other witnesses or documents that contradict the
explanation provided by S1 or which call S1’s veracity into question. We therefore find, as
did the AJ, that no genuine issue of material fact exists with respect to S1’s motivation in
connection with her decision to report him to TIGTA in May 2012.

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.

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

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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

April 8, 2016
Date