EEOC Appeal 2020000124

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Venetta S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000124
Agency No. IRS-18-0763-F
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 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intake Advocate
Technician, GS-7, at the Agency’s National Taxpayer Advocate office in San Jose, California.
Report of Investigation (ROI), at 66. Complainant’s duties as an Intake Advocate were to assist
taxpayers who had difficulty with their taxes and to verify taxpayer information, among other
things. Id. at 68. Complainant would assist taxpayers over phone, by fax, through the mail, and
in-person as well. Id. Prior to her promotion into the Intake Advocate position, Complainant
worked as a Group Secretary with the Agency for 20 years. Id. at 67.
According to Complainant, management continued to assign her secretarial duties even though
she had been promoted into the Intake Advocate position. Id.
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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Complainant specifically averred she was assigned secretarial duties consisting of date stamping,
distributing in-coming mail, and preparing out-going mail. Id. at 68. Complainant explained that
she also was assigned the tasks of emptying file cabinets and destroying closed case files, as well
as pulling closed cases for the quality review process. Id.
Complainant believed that she should have been considered for a Special Act Award as she had
performed secretarial duties in addition to the duties of her Intake Advocate role. Id. at 72.
Complainant explained that a Special Act Award was usually given to employees for the
performance of unusual job duties out of the scope of the duties for their assigned position. Id.
The Supervisory Associate Advocate attested that the Agency did not have an office secretary
specifically assigned to perform clerical duties at the time, and therefore clerical work fell on
other employees. Id. at 156. The Supervisory Associate Advocate averred that after Complainant
complained 	that 	she 	was 	performing 	secretarial 	duties, 	she 	met 	with 	Complainant 	and
determined that Complainant did not have enough work to keep her busy. Id. at 151. The
Supervisory Associate Advocate stated that a group meeting was held to discuss Complainant’s
complaints about being the only one who was picking up the mail, and everyone in the team then
agreed to share the responsibility in picking up the mail. Id. at 152.
The Supervisory Associate Advocate further averred that to qualify for a Special Act Award, the
employee must meet the requirements of the applicable section of the Agency’s manual, which
provides that Special Act Awards are granted solely at the discretion of management. Id. at 154.
The Supervisory Associate Advocate stated that she had never given an employee a Special Act
Award and noted that other employees regularly complained about Complainant's performance
as an Intake Advocate. Id. at 156,159.
On November 2, 	2018, Complainant filed 	an 	EEO 	complaint alleging that the Agency
discriminated against her on the basis of color (black) when she was assigned secretarial duties
from September 2017 through September 2018, and she was not given a Special Act Award.
Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.
The Agency specifically found that Complainant did not establish a prima facie case of
discrimination because she did not show that she was treated differently than any similarly
situated employee outside her protected class. The Agency further found no evidentiary link
between her membership in her protected class and any adverse employment action.
2 The record is silent as to whether Complainant requested a final decision from the Agency or
simply did not respond to the notice of her right to request a hearing.

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The Agency determined that while Complainant cited to three comparators whom she alleged
where not required to perform secretarial duties, these employees were not similarly situated to
her.
On appeal, Complainant maintains that the Supervisory Associate Advocate failed to delegate
clerical duties to other employees outside her protected basis. Complainant asserts that there
were days when other employees would not even pick up the mail, and she needed to check the
mail daily to see if the mail contained any letters from taxpayers that needed to be processed.
Complainant further maintains that she was entitled to a Special Act Award, as she performed
secretarial 	duties 	in 	addition 	to 	her 	regular 	duties. 	Complainant 	states 	that 	the 	office’s
productivity would have been negatively affected if she refused to perform the extra clerical
duties that other employees did not perform.
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”).
ANALYSIS AND FINDINGS
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 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).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case
of discrimination based on her color, the Agency articulated legitimate, nondiscriminatory
reasons for its actions.

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Specifically, the Supervisory Associate Advocate attested that the Agency did not have an office
secretary specifically assigned to perform clerical duties at the time, and therefore clerical work
fell 	on 	other 	employees. 	The 	Supervisory 	Associate 	Advocate 	further 	explained 	that
Complainant did not have enough work to keep her busy. The Supervisory Associate Advocate
stated, moreover, that she had never given an employee a Special Act Award and noted that other
employees regularly complained about Complainant's performance as an Intake Advocate.
These explanations meet the Agency's burden of production under Burdine. The burden now
shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for
discrimination. Burdine, at 256. Upon review, we find that Complainant has not established that
the Agency’s reasons for its actions were pretext for discrimination. We note that Complainant
does not dispute that an employee was hired to replace her as the secretary, but the employee left
the Agency leaving no one specifically assigned to perform secretarial duties. ROI, at 3. While
Complainant may have performed secretarial duties outside her position description, there is
simply no evidence that management was motivated by discriminatory animus here. We also can
find no evidence that management’s lack of consideration of Complainant for a Special Act
Award was based on Complainant’s color. Based on a review of the record, we find that
Complainant has not established that the Agency subjected her to discrimination.
CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination.
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.
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.

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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. 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 10, 2020
Date