Hermila B.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120171885 (E.E.O.C. Dec. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Hermila B.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120171885

Hearing No. 570-2016-01462X

Agency No. IRS-12-0792-F

DECISION

Upon review, the Equal Employment Opportunity Commission (EEOC or Commission) finds
that the Agency’s final decision dated March 17, 2017, dismissing Complainant’s complaint for
raising the same claim in a negotiated grievance procedure that permits allegations of
discrimination is proper pursuant to 29 C.F.R. § 1614.107(a)(4).

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Information Technology (IT) Specialist, GS-2210-13, Applications Development
Compliance, Reporting Compliance, Integrated Program Services Branch, Business Information
Section, in Washington, D.C.

On September 17, 2012, Complainant contacted an EEO Counselor regarding her complaint.
Complainant filed her formal complaint on November 26, 2012. Therein, Complainant alleged
discrimination based on race (Black) and color (black/dark) when she was subjected to a hostile
work environment in that:

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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(1) On an ongoing basis beginning in 2010, her manager has consistently verbally bullied
her, ignored her and talked about her behind her back.

(2) On or about August 31, 2012, she was reprimanded in response to an email that she sent
to her manager.

(3) On an unspecified date(s) her manager sent an email to a non-African American, non-
managerial official to evaluate her work, to micromanage and demean her.

(4) On an unspecified date(s) her manager requests weekly briefings when she has not given
Complainant any assignments.

(5) On an unspecified date(s) her manager denied Complainant the opportunity to attend
“JAVA” Immersion training.

(6) On an unspecified date(s) her manager left Complainant’s emails on the copier for all to
see and sent her emails to other employees.

Previously, Complainant filed a grievance on February 16, 2012, and at the Step 2 grievance
meeting, she alleged discrimination since 2005, when: she was denied a temporary promotion to
the Grade 13; she was ignored during meetings and embarrassed; she was subjected to disparity
in treatment in comparison to coworkers; and she was subjected to a hostile work environment.
An Arbitrator denied the grievance on December 5, 2012.

While the above grievance was pending, Complainant filed a second grievance on July 18, 2012.
At the Step 2 grievance meeting, she alleged discrimination concerning her appraisal and a
hostile work environment and retaliation involving duties, work assignments, and her
supervisor’s bullying and mistreatment. Complainant withdrew the second grievance at Step 3
on September 6, 2012.

The record indicates that the Agency completed the investigation of the complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On February 16, 2017, the AJ
issued an Order of Dismissal without holding a hearing, finding that Complainant elected to
bring her claim of a hostile work environment through a negotiated grievance process.
Accordingly, the Agency issued its decision dismissing the complaint.

The record indicates that Complainant was covered by a collective bargaining National
Agreement that permitted grievants to raise allegations of discrimination under EEO procedure
or the negotiated grievance procedure, but not both. Upon review, we agree with the AJ that
Complainant effectively raised the same matters alleged in the instant complaint in her
grievances, i.e., a hostile work environment. Based on the foregoing, we find that the Agency
properly dismissed the complaint for raising the same claims in a negotiated grievance procedure
that permitted allegations of discrimination pursuant to 29 C.F.R. § 1614.107(a)(4).

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CONCLUSION

Accordingly, the Agency’s final decision dismissing the complaint is AFFIRMED.

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 (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
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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

December 14, 2018
Date