EEOC Appeal 2020001929

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scarlet G.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020001929
Hearing No. 450-2017-00424X
Agency No. IRS-17-0002-F
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
January 22, 2020 appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 27,
2020 final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Assistant at the Agency’s
facility in Dallas, Texas. Complainant has since retired from the Agency.
On January 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her because of her disability (depression), age (born 1952), and in reprisal for prior
protected activity when, on September 3, 2016, Complainant learned that she was not selected for
a Human Resources Specialist (HRS) position announced under vacancy announcement no.
16CS2-HCNo454-201-11-DG.
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 its investigation, 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. The AJ assigned to the case determined sua sponte that
the complaint did not warrant a hearing and issued a decision by summary judgment in favor of
the Agency on October 22, 2019. The Agency subsequently issued a final order adopting the AJ’s
finding of no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for 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
“material” fact has the potential to affect the outcome of a case.
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. Here, Complainant
has failed to point with any specificity to particular evidence in the investigation file or other
evidence of record, that indicates such a dispute. For the reasons discussed below, we find that,
even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in his favor.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he
or she 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. 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, non-discriminatory 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).

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As an initial matter, the AJ correctly determined that there was no evidence in the record of
Complainant having filed a prior EEO complaint and Complainant does not present any evidence
to refute this finding. Instead, Complainant states that she had previously reported one of the
selecting officials (“MO1”) to upper level management, but does not state she complained of
discrimination when making these reports.2 In sum, Complainant does not provide any evidence
of prior EEO participation or oppositional activity covered by the anti-discrimination statutes, and
the Agency management officials testified that they were unaware of any prior protected activity.
As such, Complainant has failed to raise even a prima facie inference of retaliatory animus under
the statutes covered by the EEO complaint process.
Assuming, arguendo, however, that Complainant had established a prima facie case of disability
or age discrimination, we conclude that responsible management officials articulated legitimate,
non-discriminatory reasons for the selection decision.
Complainant applied for the HRS position, she was referred for the position, and took a written
examination for the position. Complainant argues that she was not selected for the position because
of her age, disability,3 and/or reprisal. The Agency witnesses involved in the selection, including
MO1, state that Selectee (born 1982) was chosen for the HRS position because she was a more
qualified candidate and had performed better on the writing exercise. MO1 stated that selections
were made considering each candidate’s performance before an interview panel, performance on
the 	writing 	exercise, 	and 	recommendations 	from 	current 	supervisors. 	MO1 	stated 	that
Complainant’s feedback from the interview panel was good, but she did not do well on the writing
exercise and was not recommended for the position by her current supervisor. 	Based on these
elements, MO1 stated she had concerns about Complainant’s analytical, problem-solving and time
management skills.
The AJ determined, and the record supports, that Complainant “displayed a subpar performance
on the one-hour writing exercise administered to all referred applicants. . .”. The record reflects
that Selectee performed better on the writing exercise, which Complainant failed to complete in
the allotted time, and was recommended by her current supervisor for the position. Moreover, the
AJ determined that Selectee had an “outstanding” most recent performance evaluation and had
worked at a GS-9 grade level (the grade of the position in question) on details, performed as a
union steward since 2014 and had served as a subject matter expert for a year. The AJ concluded
that record failed to establish that Complainant was the plainly superior candidate.
We conclude that the evidence of record fully supports the AJ’s determination that Complainant
failed to prove, by a preponderance of the evidence, that these proffered reasons for the selection
were a pretext for unlawful discrimination.
2 Complainant alleges that she reported MO1 to upper level management for threatening her and
for nepotism. Complainant also asserts that she reported other individuals to management.
3 We presume for purposes of analysis only, and without so finding, that Complainant is an
individual with a disability.

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In an effort to establish pretext, Complainant addresses her work history and argues the Agency
failed to give her proper consideration based on her disabled veteran status, years of military
service, and years with the Agency. However, while Complainant asserts she was more
experienced than Selectee and should have been chosen, she has not established that any alleged
disparities in qualifications between her and Selectee are “of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over
[her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11 th Cir. 2004); see
also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).
Complainant complains about the writing exercise required for the subject position.4 Management
officials testified that the writing exercise was designed to test the applicant’s analytical abilities,
problem-solving skills, writing ability and time utilization skills. Complainant, however, asserts
that in her many years of service a writing exercise had never been imposed for promotion to a
Labor Relations Specialist position. Complainant argues that the writing exercise was simply
employed to “cover up the abuse, retaliation, and discrimination that I have had to suffer with for
so many hurtful years.” 	However, beyond her bare assertions, we find nothing in the record to
support this claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order implementing the AJ's decision by summary
judgment concluding no discrimination was established.
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
4 It is again noted that Complainant did not complete the writing exercise within the allotted time.

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(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.
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.

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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
September 23, 2020
Date