0120161720
08-09-2016
Cristen T.,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
Cristen T.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120161720
Agency No. IRS-16-0222-F
DECISION
Complainant timely appealed to this Commission from the Agency's April 21, 2016 dismissal of her complaint of unlawful 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
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst (GS-0343-9) within the Management Support Team for Refundable Credits, in Examination Operations, which is part of Return Integrity and Compliance Services ("RICS") in the Agency's Wage and Investments ("W&I") Division, located in Chamblee, Georgia.
On April 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of reprisal for prior protected EEO activity (Agency Nos. IRS-13-0677-F, IRS-15-0859-F, and IRS-15-1644-F) when:
1. On a continuing basis, the Agency assigned Complainant different duties than other GS-0343 employees, and the assigned duties were outside her Position Description;
2. The Agency refused to non-competitively place Complainant into a Career Ladder GS-0343 Management & Program Analyst position;
3. The Agency did not select Complainant for the GS-0343-11/12 Management & Program Analyst position, Vacancy Announcement 16CW3-WIN-022-0343-11/12; and
4. On January 28, 2016, Complainant learned that although her Annual Performance Appraisal ("PA") ratings were "outstanding," they not based on the Critical Job Elements ("CJE") for her position because all of her assigned duties fell under the category "other duties as assigned."
Complainant began working as a GS-343 Management and Program Analyst in 1999. In or around 2000, there was a reorganization within the Agency and all of the GS-343 Management and Program Analysts except for Complainant were reassigned within the W&I Division. To date, Complainant is the only GS-343 Management and Program Analyst on her team in Examination Operations. Complainant alleges that the GS-343 Management and Program Analysts who were part of the reorganization retained their title but were given different responsibilities and assignments, and were placed on a career ladder track (GS 9, 11 and 12).
Complainant has previously argued that she should also be on a career ladder track and provided with the same types of work assignments as the other GS-343 Management and Program Analysts. In the instant complaint, she also alleges that her PA does not reflect the work assignments and responsibilities within the Position Description for a GS-343 Management and Program Analyst. Instead, all of Complainant's work assignments fell within the category of "other duties as assigned." According to Complainant's second and third line supervisors, her PA describes the duties that she actually performs, and that the assignments and responsibilities of GS-343 Management and Program Analysts vary based on the needs of the office.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim as previously raised and adjudicated and/or for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) also provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). We have previously found that a complainant cannot reassert her prior EEO complaint simply because she now has collected further evidence in support of her claim. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120132933 (Jan. 14, 2014); see also Doleshal v. Dep't of Health and Human Servs., EEOC Appeal No. 01A40020 (July 29, 2004) ("Finding a new comparison or arguing a different theory of law does not create a new claim.").
The record supports the Agency's dismissal of Claims 1, 2, and 3 on the grounds that they state the same claims that have already been brought before the Agency and this Commission. Complainant formally raised Claims 1, 2 and 3 in Agency No. IRS-15-1644-F, which the Agency investigated and, per Complainant's request, submitted for review by an EEOC Administrative Judge ("AJ") (EEOC Hearing No. 410-2016-00449U), and in IRS-15-0859, also pending AJ review (EEOC Hearing No. 410-2016-00136X). The issues in Claims 1 and 2 are also pending review under Agency No. IRS-13-0677-F (EEOC Hearing No. 410-2016-00046X).
The Agency erred in its determination that Claim 4 failed to state a claim because Complainant's assertion that she was rated "outstanding" on her PA did not allege a "specific harm or loss with respect to a term, condition, or privilege of employment." Complainant argues on appeal (as well as in her Formal Complainant and the Counselor's Report), that the alleged harm in Claim 4 was not her PA rating, but the standards and responsibilities on which that rating was based. However, we find Complainant's intended framing of Claim 4 states the same claim as her previous complaints on which Claim 1 was based. The elements of time, place, incident, and parties are identical: for an ongoing period of time in 2015 and 2016, management has not assigned her the same duties as the other GS-343 Management and Program Analysts, and the duties that she is assigned are not within the Position Description. Complainant has also previously alleged the same harm, that the Agency's failure to provide her with assignments commiserate with her title and the position description will harm her competitiveness as she applies to GS-11 and career ladder GS-343 Management and Program Analyst positions. Hence rather than stating a new claim, we Claim 4 proffers evidence in support of existing claims, but must also be dismissed as it is not a new claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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. Haden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 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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