0520160047
01-29-2016
Cher C.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cher C.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520160047
Appeal No. 0120131025
Agency No. IRS-11-0820F
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120131025 (September 11, 2015). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
During the period at issue, Complainant worked as an Internal Revenue Agent in Washington, D.C. Complainant filed a formal EEO complaint alleging discrimination based on race and sex.
In our prior decision, we did not address the case on its merits, as the Agency had done. Instead, we dismissed Complainant's appeal based on a determination that the claims in the instant formal complaint had the same "factual predicate" as her civil actions filed in the United States District Court for the District of Columbia.
In response to Complainant's Request for Reconsideration, the Agency requests that we dismiss the request as untimely filed. Specifically, the Agency stated that on September 11, 2015, it mailed its final decision to Complainant at her address of record. The Agency stated that under the certificate of service it is presumed that Complainant received the decision within 5 calendar days of mailing which is September 16, 2015.
As a threshold matter, we find that the record in this case contains insufficient evidence reflecting Complainant's receipt of the instant final decision on or about September 16, 2015. The record does not contain a copy of the certificate of service indicating a delivery was made to Complainant's address of record on or about September 16, 2015. We determine that there is no evidence indicating that Complainant actually received the final decision on the date as alleged by the Agency. Where, as herein, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated "the agency has the burden of proving evidence and/or proof to support its final decisions," see also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore, we find that Complainant's October 14, 2015 request to be timely and will proceed to address it herein.
In her Request for Reconsideration, Complainant argues that the Commission erred in dismissing her appeal when it found that the claims in her EEO complaint were based on the same facts as her civil actions. Her arguments on her request for reconsideration encompass a variety of matters, including the fact that "even though Appellant's civil actions and administrative complaint include some of the same acts, the crux of Appellant's administrative complaint are factual allegations that [Agency official], [Agency official], and [Agency official] discriminated against her because of her race and gender."
However, despite these assertions, Complainant on her request to reconsider primarily focuses on the substance of the Agency finding of no discrimination, with arguments that clearly had been raised, or certainly could have been raised, on appeal. In this regard, we emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120131025 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
January 29, 2016
__________________
Date
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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