EEOC Appeal 2020000702

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charles L. Burgett,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000702
Agency No. IRS-19-0305-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 August 29, 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 as a former Agency employee and applicant for four
different positions with the Agency located in various states.
On December 27, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on race (African), sex (male), and in reprisal for prior protected
EEO activity2 when he was notified that he was not selected for the following four (4) positions:
1 Complainant specifically requested in his appeal that the Commission not replace his name
with a pseudonym when the decision is published to non-parties and the Commission’s website.
2 The record reflects that Complainant filed prior EEO complaints related to his non-selection for
various other positions at the Agency. Complainant testified that the Human Resources (“HR”)
specialists and selecting officials identified in the instant complaint were the same individuals
identified in his prior complaints.

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1. 	on November 21, 2018, Tax Examining Technician, Vacancy Announcement
Number (VA#) 18CS3-WIX0153-0592-05-CP;
2. 	on November 23, 2018, Contract Representative, VA# 18CW7-WIX0066-0962-
05-TB;
3. 	on November 26, 2018, Contract Representative, VA# 18CW5-WIX0053-0962-
05-LG; and
4. 	on 	November 	28, 	2018, 	Remittance 	Perfection 	Technician, 	VA# 	18CS3-
WIX0174-0503-05-HS.
After the investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant initially requested a hearing, but subsequently withdrew his hearing request.
On August 29, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
On appeal, Complainant argues that the Agency failed to conduct a proper. Complainant further
argues that he was discriminated against when the Agency failed to select him for the positions at
issue. 	Specifically, Complainant notes that the Agency inconsistently applied its policy to
identify and consider an applicant’s prior discriminatory action and/or termination history
occurring within 6 years of applying for a position. Complainant reasons he was terminated in
May 2012 and that his name should not have been included on the ALERTS list because the
vacancies for the positions at issue were open on June 14, June 25, August 7, and August 24,
2018, and the 6-year period following his May 2012 termination had passed at the time he could
begin to apply for the positions at issue.
ANALYSIS AND FINDINGS
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).

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Once the agency has met its burden, a 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).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As a preliminary matter, we address Complainant’s argument that there are deficiencies in the
report of investigation (“ROI”). 	Our review of the record indicates that the Agency provided
Complainant a copy of the ROI on June 18, 2019. 	There is no indication that Complainant
submitted a written statement specifying any deficiencies in the record after he received a copy
of the ROI. Moreover, we note that Complainant withdrew his request for a hearing where he
would have had the opportunity to cross examine witnesses and further develop the evidence.
Our independent review of the record reveals an adequate investigation.
The record reflects that the Agency provided legitimate, non-discriminatory reasons for not
selecting Complainant for the four positions at issue.
Tax Examining Technician Position (VA# 18CS3-WIX0153-0592-05-CP)
The selecting official (“SO1”) for the position at issue testified that he became aware of
Complainant’s race, sex, and prior EEO activity when in 2016, he testified in an EEO complaint
filed by Complainant regarding Complainant’s non-selection for a 2012 job certificate. SO1
further explained that he was the selecting official for the 2012 position.
In making his selection for the instant position, SO1 explained that he was provided a list of
eligible (“A List/Category A”) employees who met the criteria for the position, and he selected
eight individuals included on that list. However, SO1 stated that he did not select any candidates
who were on both the A List and the Agency’s “Alert” list. 	SO1 clarified that the Alert list
included employees who had prior terminations from service. 	SO1 indicated that he did not
select Complainant for the position due to Complainant’s prior termination.

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Contract Representative Position (VA# 18CW7-WIX0066-0962-05-TB)
The selecting official (“SO2”) for the position at issue explained that all candidates who were
included in the A List, except candidates who were included on the Alerts Adjudication
Spreadsheet, were offered a position. SO2 acknowledged that the process for selecting external
candidates from the A List was the same process the Agency previously used. SO2 noted,
however, that for this position, she received a copy of the Alerts Adjudication Spreadsheet which
identified previously employed federal applications who had disciplinary or conduct actions
taken against them. 	SO2 clarified that no applicants were hired who were listed on the Alerts
Adjudication Spreadsheet. Because Complainant’s name was on this spreadsheet, SO2 testified
that Complainant was not selected for this position.
Contract Representative Position (VA# 18CW5-WIX0053-0962-05-LG)
The selecting official (“SO3”) explained that she made her selection from the instant position
from the candidates identified in Category A by HR. SO3 noted that Category A applicants are
ranked and reviewed first before considering individuals identified by HR on Categories B, C,
and D. SO3 stated that she selected all Category A candidates “unless [she] was advised by HR
of past personnel actions.” 	SO3 denied having any knowledge of Complainant’s race, sex, or
prior EEO activity.
Remittance Perfection Technician Position (VA# 18CS3-W1X0174-0503-05-HS)
The selecting official (“SO4”) for the position at issue acknowledged that he was aware of
Complainant’s race, sex, and prior EEO activity because he was Complainant’s prior manager in
the 1990’s and he was also called as a witness in one of Complainant’s previous EEO complaints
against the Agency.
SO3 indicated that due to the “extreme list of applicants” identified by HR as eligible, SO3
“randomly selected” 29 names from the list. SO3 stated that Complainant’s name was included
on the candidate certification list. However, SO3 indicated that he had no knowledge of an Alert
list. 	SO3 emphasized that “selections were randomly selected going down the list making
selections” and SO3 denied that Complainant’s race, sex, or prior EEO activity had any
involvement with his decision. 	SO3 explained that he based his decision not to select
Complainant on his “past prior experiences with working with Complainant” when he was
Complainant’s manager.
The record contains a copy of an Employment Operations (“EO”) Alert that address the
Agency’s policies for conducting pre-employment background suitability checks for external
position vacancies. The “Pre-Hire Suitability Determination and Documentation” EO, effective
December 19, 2011, indicates that pre-hire checks included, among other categories, “ALERTS
(prior IRS conduct and/or performance).” The EO further states, in pertinent part,

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All EO are required to query the ALERTs Pre-Employment Research Tool for all
qualified external applicants to identify any prior IRS employment performance
issues within the past six years. 	This is intended to be completed after generating
the selection certificate but prior to issuing it to the selecting official (at a
minimum prior to sending tentative job offer).
The record further indicates that on June 18, 2018, the Agency amended its prior guidance
(issued on October 3, 2017) on ensuring that selecting officials review prior conduct and
performance issues prior to issuance of a tentative offer. The June 18, 2018 amended guidance
requires the approval/concurrence by the Business Commissioner and IRS Human Capital
Officer of a selection official or delegate’s decision to rehire a former employee with ALERT
hits. 	Also, on June 18, 2018, the Agency issued revised guidance on Consideration of
Performance and Conduct in the External Selection/Hiring Process to clarify that its guidance on
approval/concurrence 	with 	hiring 	individuals 	with 	ALERT 	hits 	also 	applies 	to 	external
applicants.
We note that a copy of Complainant’s personnel actions reflect that he was terminated from his
employment with the Agency effective May 20, 2012 for “unacceptable performance” during his
probationary period as a Tax Examining Clerk.3 	We acknowledge that two of the position
vacancies opened in June 2018, approximately 6 years and 1 month after Complainant’s May
2012 	termination, 	and 	the 	remaining 	two 	position 	vacancies 	opened 	in 	August 	2018,
approximately 6 years and 3 months after Complainant’s May 2012 termination. 	Thus,
Complainant’s inclusion on the ALERTS list was an error. 	However, Complainant has not
demonstrated that this error was made based on his race, sex, or prior protected EEO activity.
We find it reasonable that the Agency could have inadvertently failed to remove Complainant’s
name from the ALERT list within the one to three-month period after Complainant had been
terminated from the Agency for 6 years.
We conclude that neither during the investigation nor on appeal has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s race, sex, or reprisal for prior
protected EEO activity.
3 The record reflects that Complainant filed a prior EEO, Agency No. IRS-12-0512-F, disputing,
in part, his termination. 	On appeal, the Commission affirmed the Agency’s final order adopting
the EEOC Administrative Judge’s finding of no discrimination. 	See EEOC Appeal No.
0120172229 (Feb. 26, 2019).
We also note that Complainant was removed from the Agency in 2006 for leave issues and
Complainant was also issued a 14-day suspension on two separate occasions in 1997.

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CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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. 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).

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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 14, 2020
Date