EEOC Appeal 2020001495

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charles L. Burgett, a/k/a
Cedrick S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020001495
Agency No. IRS-18-0046-F
DECISION
On December 5, 2019, 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
October 28, 2019 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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 was an applicant for a tax examining technician position,
under Vacancy Announcement number 17CS3-WIX0086-0592-05-HS at the Agency’s office in
Kansas City, Missouri.
On November 1, 2017, Complainant filed a formal 	complaint, alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and in reprisal for
prior protected EEO activity (numerous prior complaints) when:
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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he was notified on October 23, 2017, that he was not selected for a Tax Examining
Technician (TET) position advertised under Vacancy Announcement Number 17CS3-
WIX0086-0592-05-HS.
After an 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 but subsequently withdrew his request. 	Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
We consider Complainant’s non-selection claim in accordance with the U.S. Supreme Court’s
three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant had to establish a prima facie case by demonstrating he was subjected to adverse
employment action under circumstances that would support his inferences of discrimination. See
Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden was on the Agency
to articulate legitimate and nondiscriminatory reasons for its actions at issue. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502 (1993). 	If the Agency articulated a legitimate, nondiscriminatory
reason for its actions, then our inquiry proceeds to the third step—whether Complainant has shown
by a preponderance of evidence that the Agency’s reasons were pretexts to mask discriminatory
motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see also U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We assume arguendo that Complainant established a prima facie case on the raised bases.
Nevertheless, 	we 	concur 	with 	the 	Agency’s 	final 	decision 	because 	it 	has 	articulated 	a
nondiscriminatory motive for the subject non-selection. Specifically, the Agency explained that,
although Complainant scored among best-qualified applicants, the Selection Official declined to
select Complainant because he had been flagged in the Agency’s Automated Labor/Employee
Tracking System (ALERTS). The record included Complainant’s SF-50 which documented that,
effective May 12, 2012, the Agency had terminated Complainant from his prior probationary
position as a tax examining technician for reasons of unacceptable performance. The Agency’s
new-hire program manager (African American, female, EEO activity unknown) explained that all
62 of the selectees, like Complainant, had also been deemed best qualified.

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Moreover, the Agency documented that twelve other best qualified applicants were flagged in
ALERTS for histories of misconduct or performance problems during prior employment with the
Agency. 	The HR manager who had reviewed the applications (male, Caucasian, EEO activity
unknown) stated that all applicants who were flagged in ALERTS were not referred to the selecting
official. Furthermore, Complainant failed to evidence his qualifications were plainly superior to
applicants the Agency selected. 	See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant asserted that the Agency should have provided better demographic and EEO
comparator information in support of its decision. However, Complainant’s self-serving statement
that he had “common knowledge” of “the Agency’s pattern and practice of discrimination and
retaliation” is insufficient to prove that the Agency’s stated reasons for his non-selection were
pretextual.
CONCLUSION
We AFFIRM Agency’s final decision and its finding that Complainant was unable to prove, to a
preponderance of evidence, that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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 Ch. 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.

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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. 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 17, 2020
Date