0120152697
01-22-2016
Kristle L.,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
Kristle L.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120152697
Agency No. IRS151298F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 2, 2015, dismissing 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 was a former Revenue Officer (GS-1169-09) for Collections at the Agency's Small Business/Self Employed Division in Detroit, Michigan.
On June 3, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (Agency Complaint Nos. IRS030778F, IRS050594FP, IRS060527FS and IRS120686F) under Title VII of the Civil Rights Act of 1964, and Section 501 of the Rehabilitation Act of 1973 when she was terminated from employment on October 31, 2014 after an investigation by Treasury Inspector General for Tax Administration ("TIGTA").
On October 31, 2014, Agency officials sent an email, accompanied by Complainant's photograph, notifying her entire division that "effective immediately, Complainant is no longer an employee of the Agency thus she should not be allowed access to the building." At the time, Complainant was on leave, so she was not aware that her employment had been terminated.2 When she returned to work on November 4, 2014, Agency officials searched her desk and escorted her from the building. On November 7, 2014, one of Complainant's supervisors sent a similar email to her former colleagues that also stated "Management is working diligently to retrieve all ID media."
On November 12, 2014, Complainant emailed an EEO counselor at the Agency's Detroit office, referencing the October 31st and November 7th emails and alleging that the Agency terminated her employment in retaliation for prior EEO activity. The counselor did not respond, so on November 30, 2014, Complainant appealed her termination to the Merit Systems Protection Board ("MSPB"). (MSPB Docket No. CH-0752-15-0115-1-1.)
On May 5, 2015, Complainant contacted an EEO counselor and filed her formal complaint. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, based on the Agency's determination that Complainant elected to pursue her claim via a non-EEO process when she appealed to the MSPB.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that the Complainant has elected to pursue the non-EEO process.
A "mixed case" is a claim of discrimination arising out of an action that is appealable to the MSPB. 29 C.F.R. � 1614.302(a) EEOC Regulations stipulate that a Complainant may elect to file a mixed case complaint with an Agency EEO counselor or a mixed case appeal with the MSPB but cannot pursue the complaint through both forums at the same time. 29 C.F.R. � 1614.302(b) If Complainant does attempt to pursue the same claim in both forums simultaneously, EEOC Management Directive 110, Chapter 4 part II (revised August 2015) provides that the forum where Complainant files first will be considered the elected forum, and that EEO Counselor contact is not sufficient to demonstrate election. If an individual files a mixed case appeal with the MSPB before filing a mixed case complaint with the agency, and the agency does not dispute MSPB jurisdiction, the agency must thereafter dismiss any complaint on the same claim, regardless of whether the claims of discrimination are raised in the appeal to the MSPB. MD-110 Ch. 4 Pt. 2, EEOC Appeal No. 019A66055 (Oct. 9, 1998)
The Agency did not dispute the MSPB's jurisdiction, and the record shows that Complainant elected to pursue the matter through the non-EEO process by appealing to the MSPB before she filed her formal EEO complaint.
On appeal, Complainant argues that her November 12, 2014 attempt to reach an EEO counselor constituted an election to pursue her claim through the EEO process. We reject this argument for the reasons stated above. We also note that Complainant is familiar with choice of forum in mixed case complaints, based on her prior appeals to the Commission. EEOC Appeal No. 0120070786 (February 22, 2007), reconsideration denied, EEOC Request No. 0520070388 (April 20, 2007).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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. Hadden, Director
Office of Federal Operations
January 22, 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 However, the Agency provided a copy of a termination letter dated October 31, 2014, which was delivered to Complainant's address on November 1, 2014. The termination letter gave Complainant appeal rights to the Merit Systems Protection Board.
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