EEOC Appeal 2025004178

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Latonya D.,1
Complainant,
v.
Scott Bessent,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2025004178
Hearing No. 490-2024-00097X
Agency No. IRS-23-0878
DECISION
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
August 4, 2025, final decision 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a
Supervisory 	Tax 	Examining 	Technician 	at 	the 	Agency’s 	Centralized 	Case
Processing office in Memphis, Tennessee.
On October 20, 2023, Complainant filed an EEO complaint alleging that the
Agency subjected her to discriminatory harassment on the bases of race (African
American), sex (female), and age (YOB: 1956), and in reprisal for prior protected
EEO activity, when:
1. 	on October 18, 2022, and other dates, management threatened to
terminate Complainant;
2. 	on October 18, 2022, the Operations Manager discussed her mother
with Complainant, and since January 2023, the Department Manager
frequently made references to “senior” and “old” during conversations
with Complainant and her Team Lead;
3. 	on unspecified dates since July 2022, management interfered with
Complainant’s leadership and management of her team through the
use of abusive and negative comments; by threatening the Team Lead;
and 	approving 	inappropriate 	behavior 	by 	an 	Employee 	under
Complainant;
4. 	on October 19, 2023, and other dates, management made violent
threats and acted to harm Complainant’s career and safety, including
stalking her; gyrating; pulling her jacket; beating on her door; and
threatening to give Complainant all the taxpayer work;
5. 	since 	January 	1, 	2022, 	management 	engaged 	in 	nepotism 	and
discrimination in hiring, developing, details, promotions, and acting
positions;
6. 	in April 2023 and October 20, 2023,2 management took personnel
actions that adversely affected Complainant’s performance, awards,
and promotions; and
2 The Commission has found that a discrete action states a claim outside of the
framework of a harassment analysis and can also be reviewed within the disparate
treatment 	context. 	See 	Moylett 	v. 	U.S. 	Postal 	Serv., 	EEOC 	Appeal 	No.
0120091735 (Jul. 17, 2012); Sedlacek v. Dep’t of Army, EEOC Appeal No.
0120083361 (May 11, 2010). Complainant initiated her EEO complaint on July 10,

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7. 	on January 12, 2023, and other unspecified dates, management used
personally identifiable information (PII) improperly and went into
Complainant’s personnel files going back 13 years.
At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation (ROI) and notice of her right to request a
hearing before an EEOC Administrative Judge. Complainant initially requested a
hearing but withdrew her request, and her complaint was remanded to the Agency
for issuance of a final decision.
The 	Agency 	found 	that, 	assuming 	a 	prima 	facie 	case 	of 	discrimination,
management officials articulated legitimate, nondiscriminatory reasons, and that
Complainant did not show pretext. For example, Complainant’s performance
ratings were based on her failure to complete her commitments within the allotted
timeframe. The Agency also determined no harassment because Complainant did
not show that she was subjected to conduct so severe or pervasive that a reasonable
person 	would 	consider 	it 	hostile 	or 	abusive. 	The 	Agency 	concluded 	that
Complainant failed to prove discrimination as alleged.
The instant appeal followed. The Agency opposes Complainant’s appeal.
STANDARD OF REVIEW
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”).
2023, and events after May 26, 2023, are timely as discrete claims. Report of
Investigation at 5. As such, we will analyze Complainant’s performance evaluation
provided on October 20, 2023, as a claim of disparate treatment.

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ANALYSIS
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie
case by demonstrating that he/she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at
802 	n.13. 	The 	burden 	then 	shifts 	to 	the 	agency 	to 	articulate 	a 	legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a
preponderance of the evidence, that the agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant alleged that management lowered her annual performance appraisal
to 	“Not 	Met” 	on 	or 	about 	October 	19, 	2023. 	Complainant 	noted 	that 	the
Department Manager later stated that it was a mistake and changed her rating to
“Met.” 	ROI 	at 	172. 	However, 	a 	mistake, 	without 	more, 	does 	not 	establish
discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No.
0120171662 (Sept. 25, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No.
0120122684 (Jul. 10, 2018).
Regardless, even assuming, arguendo, a prima facie case of discrimination and
reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons
for the action. The Department Manager responded that Complainant did not
complete her commitments within the allotted time. The Department Manager also
noted that Complainant’s appraisal went before an impartial review board that
determined her final rating. Supplemental ROI at 144-7.
Complainant did not dispute that she did not timely complete her commitments,
and she did not show that the proffered reasons are not worthy of belief. On appeal,
Complainant contends that she deserved an Exceeds or Outstanding.

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However, the Commission has held that complainants cannot demonstrate pretext
based on a subjective assessment of their own performance. See Frederick A. v.
Equal Employment Opportunity Comm., EEOC Appeal Nos. 2022003887 and
2022004927 (Feb. 21, 2024); Britany N. v. U.S. Postal Serv., EEOC Appeal No.
2021004882 (Jul. 11, 2023); Trent M. v. Dep’t of Commerce, EEOC Appeal No.
2022000776 (Nov. 2, 2022). Complainant’s bare assertions that management
officials discriminated against her are insufficient to prove pretext or that the
action was discriminatory. Accordingly, we find that Complainant did not establish
discrimination based on her age, race, or sex, or in reprisal for prior protected EEO
activity, for her October 2023 performance evaluation.
Harassment
In order to establish a prima facie case of harassment, Complainant must prove, by
a preponderance of the evidence, the existence of five elements: (1) that she is a
member of a statutorily protected class; (2) that she was subjected to unwelcome
conduct related to her protected class; (3) that the harassment complained of was
based on her protected class; (4) that the harassment had the purpose or effect of
unreasonably 	interfering 	with 	her 	work 	performance 	and/or 	creating 	an
intimidating, hostile, or offensive work environment; and (5) that there is a basis
for imputing liability to the employer. See Celine B. v. Dep’t of Navy, EEOC
Appeal No. 2019001961 (Sept. 21, 2020); Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998). See also Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982), approved in Meritor Savings Bank v. Vinson, 477 U.S.
57, 66-67 (1986); Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229
(5th Cir. 2001). The harasser’s conduct should be evaluated from the objective
viewpoint 	of 	a 	reasonable 	person 	in 	the 	victim’s 	circumstances. 	Oncale 	v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In other words, to prove her hostile work environment claim, Complainant must
establish that she was subjected to conduct that was either so severe or so
pervasive that a “reasonable person” in Complainant’s position would have found
the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of a protected basis; in this case, her age, race, sex, and
protected EEO activity. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself.

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In claim 2, Complainant asserted that the Department Manager stated that the
Director would not tolerate “this old stuff in the work environment.” Complainant
also stated that the Team Lead informed her that the Department Manager used the
term “senior” in reference to her age which made her uncomfortable. ROI at 133-4.
The Team Lead averred that the Department Manager said that she was the “old
team permanent lead” and needed to show others what to do, and “they are old
leads too.” The Team Lead also noted that during a staff meeting, the Department
Manager stated that she did not want the “old way of training” because she wanted
to do it electronically, without paper. The Team Lead added that she heard the
Department Manager say “you are an old senior” on several occasions. ROI at 285.
We find that not every use of the term “old” referred to people and that several
utterances of “old” and “senior” about the Team Lead were not sufficiently severe
or pervasive to rise to the level of a hostile work environment for Complainant.
We further find that Complainant did not show that the remaining incidents of
alleged harassment were connected to any of her protected categories. For claim 1,
Complainant explained that she reported violence in the workplace against the
Department Manager. On October 22, 2022, the Operations Manager instructed
Complainant to report for an investigative interview and noted that failure to
participate or cooperate may result in discipline, up to and including removal. ROI
at 127-8. The Operations Manager responded that this was standard language as a
practice regarding noncompliance, noting that Complainant complained that she
was being forced to work in a hostile work environment but refused to participate
in the investigation. ROI at 183.
In response to the allegation that the Program Manager discussed her mother with
Complainant (claim 2), the Program Manager believed that Complainant knew her
mother, who was retired from the Agency, and the Program Manager asked when
she first introduced herself to Complainant as small talk. Complainant confirmed
that she knew the Program Manager’s parents. ROI at 188.
Complainant described the purported actions that interfered with her leadership
and management for claim 3 to include allowing the Employee advanced leave and
approval of leave without pay versus absence without leave. The Employee was
allowed 	to 	communicate 	directly 	with 	the 	Program 	Manager 	or 	Department
Manager regarding her absences. In addition, Complainant and the Team Lead
were instructed to retrain the Employee due to her performance issues.

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However, Complainant offers no evidence that these incidents were based on a
protected 	basis. 	Complainant 	also 	claimed 	that 	the 	Program 	Manager 	and
Department Manager lied that the Employee filed a grievance against Complainant
with the Union, and they sent Complainant a meeting invitation to intimidate and
threaten Complainant. ROI at 137-8. The record contains the Employee’s email
reporting harassment from Complainant. For example, Complainant approached
the Employee’s desk at 7:17 a.m. and stated that she had been checking for her
arrival every five (5) minutes. The Employee’s tour of duty begins at 7:00 a.m.,
and she was delayed that day by an issue at the security gate, and she provided the
telephone number to the Security Desk to verify her explanation. However,
Complainant expected the Employee to use annual leave for her tardiness. The
Employee reported that she contacted the Union before proceeding with an EEO
complaint or grievance. ROI at 214-15.
For 	claim 	4, 	Complainant 	attested 	that 	the 	Department 	Manager 	beat
Complainant’s office door; screamed; gyrated using her hands; and threatened to
unfairly distribute taxpayer returns to ensure that operational goals were not met.
ROI at 147. The Team Lead corroborated that she witnessed the Department
Manager screaming and raising her hand at Complainant. When the Team Lead
tried to calm them down, the Department Manager pushed her arm and stormed out
of Complainant’s office. ROI at 286. However, neither provided evidence that the
Department Manager’s actions were due to Complainant’s age, race, sex, or
protected EEO activity.
Regarding claim 5, Complainant complains that she was denied a promotion on
November 6, 2020. Supplemental ROI at 42-3. However, Complainant raised this
claim in a prior EEO complaint, and the Commission found no discrimination in
Hulda 	W. 	v. 	Department 	of 	the 	Treasury, 	EEOC 	Appeal 	No. 	2025001010
(September 	29, 	2025). 	While 	Complainant 	alleged 	discriminatory 	personnel
actions in April 2023 in claim 6, she did not provide any information about actions
in April, and she focused on the October 2023 performance appraisal, discussed
above. Supplemental ROI at 47-53.
Complainant accused the Director of improperly using her PII to access her
personnel records for the past 13 years (claim 7), which she viewed as a form of
stalking. Supplemental ROI at 53, 56. The Director responded that Complainant
expressed an interest in transferring and had experience in information technology
(IT).

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To 	facilitate 	her 	request, 	the 	Director 	asked 	other 	directors 	if 	they 	had
developmental opportunities. The Director’s Secretary researched “HRConnect” to
determine which IT department Complainant previously worked in but was unable
to find the information. She then contacted the Help Desk for assistance, and
Complainant inquired about the Help Desk ticket. The Director attested that no PII
was obtained or used, and the Help Desk inquiry was based on system codes, and
they did not access Complainant’s personnel file. Supplemental ROI at 153-6.
The 	Commission 	has 	held 	that 	routine 	work 	assignments, 	instructions, 	and
admonishments do not rise to the level of harassment because they are common
workplace 	occurrences. 	See 	Gray 	v. 	U.S. 	Postal 	Serv., 	EEOC 	Appeal 	No.
0120091101 (May 13, 2010). Unless it is reasonably established that the common
workplace occurrence was somehow abusive or offensive, and that it was taken in
order to harass Complainant on the basis of his protected class, we do not find such
common workplace occurrences sufficiently severe or pervasive to rise to the level
of 	a 	hostile 	work 	environment 	or 	harassment 	as 	Complainant 	alleges. 	See
Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept.
12, 2014). There is no evidence that these work-related incidents were taken in
order to harass Complainant on the basis of a protected class. Accordingly, we find
that Complainant did not establish that the Agency subjected her to harassment
based on age, race, or sex, or in reprisal for prior protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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.

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Requests for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. If the party
requesting reconsideration elects to file a statement or brief in support of the
request, that statement or brief must be filed together with the request for
reconsideration. A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within 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).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street,
NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request 	for 	reconsideration 	as 	untimely, 	unless 	extenuating 	circumstances
prevented the timely filing of the request. Any supporting documentation must
be submitted together with the 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(f).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their 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:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 16, 2026
Date