0520180165
04-05-2018
Marcelina Q,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
Marcelina Q,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520180165
Appeal No. 0120160430
Agency No. IRS140778F
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160430 (November 28, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), 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 this complaint, Complainant worked as a Tax Examining Technician at the Agency's Covington, Kentucky Service Center facility. On October 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when:
1. On August 27, 2014, Complainant was charged 20 hours of absent without leave (AWOL);
2. On August 27, 2014, Complainant received two counseling memos:
a. An undated memo titled "Counseling" and delivered on the afternoon of August 27, 2014, (Memo 1); and
b. A memo dated August 27, 2014, titled "Unprofessional Conduct; Workplace Disruption; Conduct Unbecoming an IRS Employee" (Memo 2).
The Agency found that Complainant was subjected to unlawful retaliation with respect to Memo 1. However, the Agency held that Complainant did not establish that she was subjected to discrimination with respect to the LWOP or Memo 2.
On October 2, 2015, the Agency issued a final decision concerning Complainant's entitlement to damages and attorney's fees. The Agency's final decision on damages denied Complainant's request for equitable relief, awarded Complainant $2,000 in nonpecuniary compensatory damages, and awarded Complainant $1,267.90 in attorney's fees and costs. The final decision found that the lost wages, sick leave, and use of LWOP were not related to the issuance of the retaliatory August 2014 memo. With respect to Complainant's request for $60,000 in nonpecuniary compensatory damages, the Agency found that much of the evidence presented by Complainant attributed Complainant's depressed mood to harassment that took place after August 2014 and the June 2015 furlough. Complainant appealed the Agency's final decision regarding nonpecuniary compensatory damages.
On appeal, Complainant asserted that she was entitled to $ 60,000 claiming harm experienced due to a furlough and repayment of LWOP hours. In EEOC Appeal No. 0120160430, we found with respect to Complainant's June 2015 furlough claim, she failed to establish a nexus between this alleged harm and the discrimination regarding Memo 1. Moreover, Complainant's claim regarding the furlough itself is at issue in a separate pending appeal, namely EEOC Appeal No. 0120161764. Accordingly, the previous decision denied Complainant's claim that she was entitled to the restoration of sick leave or payment for hours of LWOP or hours furloughed. Subsequently, the previous decision modified the Agency's final decision and determined that $5,000 was an appropriate amount of compensatory damages, as Complainant presented sufficient evidence to establish that the Agency's actions caused at least some of her emotional distress.
In her request for reconsideration, Complainant expresses her disagreement with the previous decision and reiterates arguments she has previously made. 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. 0120160430 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
To the extent that it has not already done so, the Agency is ordered to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to remove all documentation and references to the undated memorandum entitled "Counseling" from all local personnel files and her eOPF.
2. Within sixty (60) days of the date this decision is issued, the Agency shall issue Complainant nonpecuniary compensatory damages in the amount of $5,000.00, less any amounts previously awarded to Complainant as nonpecuniary compensatory damages.
3. Within sixty (60) days of the date this decision is issued, the Agency shall issue Complainant attorney's fees and costs in the amount of $1,267.90, less any amounts previously awarded to Complainant as attorney's fees and costs.
4. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice, as provided in the statement entitled "Posting Order."
5. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to the responsible management officials, including the Supervisory Tax Examining Assistant who issued Complainant the memorandum.
6. Within sixty (60) days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials, including the Supervisory Tax Examining Assistant who issued Complainant the memorandum. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Covington, Kentucky Service Center facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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
April 5, 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
0520180165
5
0520180165