0520160515
11-18-2016
Jackie A.,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
Jackie A.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520160515
Appeal No. 0120142066
Hearing No. 420-2013-00188X
Agency No. IRS130521F
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120142066 (July 26, 2016). 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).
At the time of events giving rise to the underlying complaint, Complainant worked as a Supervisory Revenue Officer at the Agency's Small Business/Self Employed Division in Birmingham, Alabama.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Lebanese) and reprisal when:
1. On May 5, 2011, she was issued a memorandum entitled, "Administrative Duties and Working Credit Hours," regarding her conducting official business while on
personal time.
2. On June 15, 2011, she was placed on an unwarranted 90-day Performance Improvement Plan (PIP), during which time Sl impeded her progress by denying her requests to work credit hours, threatening her with disciplinary action for conducting official business while on personal time, and issuing her unfounded feedback.
3. On June 27, 2011, she was issued a proposed five-day suspension letter.
4. On or about November 2, 2011, she received a lowered 2011 annual appraisal for the rating period ending September 30, 2011.
5. On March 16, 2012, she was issued a memorandum entitled, "Performance Improvement Discussion," which identified continued unacceptable performance based on an FY2012 Operational Review and advised she either step down from her position or face potential removal from the Agency.
6. On April 23, 2012, she was coerced to accept a downgrade from her permanent position as a Supervisory Revenue Officer, IR-1169-05, to a permanent position of Revenue Officer, GS-1169-12, with the Agency, effective June 3, 2012.
7. On or about June 8, 2012, she received a lowered departure appraisal for the period ending June 2, 2012.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ's) decision in favor of the Agency. As an initial matter, we affirmed the AJ's procedural dismissal of claims 2, 5 and 7, pursuant to 29 C.F.R. � 1614.107(a)(1), as independent claims, while preserving them as evidence in support of Complainant's claim of ongoing harassment. With regard to the remaining claims, as well as the claim of ongoing harassment, the AJ concluded by summary judgment that Complainant failed to prove that discrimination occurred.2
In her request for reconsideration, Complainant expresses her disagreement with the previous decision and presents some of the same arguments she raised on appeal. 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. 0120142066 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
November 18, 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.
2 Claim 6 was not addressed as it involved a matter under the jurisdiction of the Merit Systems Protection Board (a "mixed case complaint") and was not before the AJ. See 29 C.F.R. � 1614.302.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520160515
2
0520160515