0120181526
08-15-2018
Donella D,1 Complainant, v. Steven T. Mnuchin, 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
Donella D,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120181526
Agency No. IRS-18-0237-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 23, 2018, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a seasonal Office Automation Clerk at an Agency Service Center in Memphis, Tennessee. On January 5, 2018, Complainant initiated EEO contact alleging that the Agency subjected her to discrimination based on disability (Post Traumatic Stress Disorder, service-connected disability, Rhinitis, Sinusitis, and Asthma) and reprisal for prior EEO activity (prior complaint) when:
1. on January 2, 2018, after Complainant's return from furlough, management refused to provide her with equipment and guidance needed to perform her duties,
2. on January 2, 2018, a management official consistently stared at her, subjecting her to sexual harassment,
3. from January 2 to 5, 2018, management charged her with absent without official leave (AWOL) although Complainant was in work status during that time,
4. on January 18, 2018, management failed to respond to Complainant's request for a tour of duty change due to her medical condition, and
5. on January 29, 2018, management reassigned Complainant to a cubical that was not in agreement with her medical conditions.
On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability and reprisal when:
1. including January 2018, management denied Complainant's request for a hardship transfer to the night shift due to her medical conditions,
2. management terminated Complainant's employment and breached a contract guaranteeing her work until August 20182,
3. management failed to select Complainant for a Management Assistant detail, and
4. management failed to select Complainant for two Human Resources Assistant positions, a Voluntary Relocation Program, and an Automation Systems Specialist position.
On March 23, 2018, the Agency issued a decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency stated that Complainant failed to raise the alleged incidents in her EEO Counseling and the alleged incidents are not like or related to the matters she did raise in counseling. The Agency informed Complainant that she should contact a Counselor "within 15 days of receipt of [the final agency] decision" if she wished to pursue the dismissed matters. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
In the instant case, the Agency determined that Complainant failed to bring claims 1 - 4 (from her formal complaint) to the attention of an EEO Counselor. 29 C.F.R. � 1614.107(a)(2) slates that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter that has been brought to the attention of an EEO counselor. We note in her report, the EEO Counselor stated that Complainant claimed that she was discriminated against on the bases of disability and reprisal when management refused to provide her with equipment and guidance needed to perform her duties, a management official subjected her to sexual harassment by staring at her, management charged her with AWOL improperly, management failed to respond to Complainant's request for a tour of duty change due to her medical conditions, and management reassigned Complainant to a cubical that did not agree with her medical conditions.
In her formal complaint of March 14, 2018, Complainant alleged that the Agency subjected her to discrimination based on disability and reprisal when:
1. including January 2018, management denied Complainant's request for a hardship transfer to the night shift due to a medical condition,
2. management terminated Complainant's employment and breached a contract guaranteeing her work until August 2018,
3. management failed to select Complainant for a Management Assistant detail, and
4. management failed to select Complainant for two Human Resources Assistant positions, a Voluntary Relocation Program, and an Automation Systems Specialist position.
Based on the above, we find that claims 2 through 4 were not raised with an EEO Counselor, and are not like or related to claims raised with an EEO Counselor in this matter. However, we find that Complainant raised claim 1 (denial of a request for transfer to the night shift) with the EEO Counselor and in the formal complaint. The Agency should continue processing of claim 1.
CONCLUSION
We MODIFY the Agency's dismissal of the instant formal complaint. We affirm the dismissal of claims 2 through 4 pursuant to 29 C.F.R. � 1614.107(a)(2), and reverse the dismissal of claim 1. We remand claim 1 to the Agency for further processing consistent with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
August 15, 2018
__________________
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.
2 The record contains an undated Seasonal Employment Agreement stating, "As a seasonal, your time in pay status is approximately 6 - 8 months January 2018 through August 2018."
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