Mitchell G.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0520160228 (E.E.O.C. Jun. 8, 2016)

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

Mitchell G.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Request No. 0520160228

Appeal No. 0120160085

Hearing Nos. 551-2015-00093X; 551-2015-00100X; 551-2015-00101X

Agency Nos. IRS-08-0378-C; IRS-08-0322-F; IRS-08-0465-F

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120160085 (Jan. 28, 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).

In April 2008, Complainant initiated a class EEO complaint (IRS-08-0378-C), hereinafter
referred to as Informal Complaint 1. Complainant additionally initiated two individual EEO
informal complaints (IRS-08-0322-F and IRS-08-0465-F), hereinafter referred to as Informal
Complaint 2 and Informal Complaint 3 respectively.

In July 2008, Complainant informed the EEO Counselor that he did not intend to pursue
Informal Complaint 1, and the matter was closed. On February 13, 2009, the Agency sent
Complainant a letter informing him that it considered all of his complaints withdrawn for
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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failure to participate in EEO counseling. Complainant did not raise any objections to the
letter. Complainant subsequently filed multiple appeals with the Merit Systems Protection
Board (MSPB), which the MSPB dismissed for lack of jurisdiction.

On February 23, 2015, Complainant filed three requests for hearings regarding Informal
Complaints 1, 2, and 3. On May 12, 2015, the Equal Employment Opportunity Commission
Administrative Judge (AJ) assigned to the matter requested more information, including copies
of the MSPB decisions, documentation of Complainant’s EEO complaints and/or EEO
counseling status, and for Complainant to explain the six-year delay between the Agency’s
February 2009 closure notice and his February 2015 re-opening request.

After reviewing the record submitted, the AJ dismissed the complaints on the grounds of
timeliness, the doctrine of laches, and lack of jurisdiction. The AJ determined that a review of
the MSPB decisions revealed that they involved claims of retaliation for whistleblower activity,
but no allegations of discrimination; and therefore, Complainant did not have a right to review
by the Commission. Additionally, the AJ determined that Complainant had failed to provide
any documentation demonstrating that he completed EEO counseling or filed formal complaints
for any of the three informal complaints or that he objected to the Agency’s administrative
closure letter. As a result, the AJ dismissed the complaints. The Agency subsequently issued
a final order fully implementing the AJ’s decision.

Complainant appealed and, in Mitchell G. v. Dep’t of Treasury, EEOC Appeal No.
0120160085 (Jan. 28, 2016), the Commission affirmed the Agency’s final order. In the
decision, the Commission noted that the record demonstrated that the Agency sent Complainant
a letter informing him that it was closing Informal Complaints 1, 2, and 3. Complainant failed
to raise any challenges at that time. In addition, the Commission determined that Complainant
failed to provide the AJ any documentation demonstrating that he had filed any formal
complaints and he did not provide a good cause explanation for his six-year delay. As a result,
the Commission found that Complainant failed to pursue his claims with any diligence or
expediency.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates numerous arguments previously raised on appeal. The Commission
emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110)
(Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736
(Aug. 20, 2007). 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. 0120160085 remains

0520160228

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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

June 8, 2016
Date