[Redacted], Andera P., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Nov 15, 2022

Appeal No. 2020004982 (E.E.O.C. Nov. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Andera P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2022003891 Appeal No. 2020004982 Agency No. IRS-19-1500-F DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020004982 (June 21, 2022). 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). During the relevant time, Complainant worked as an Individual Taxpayer Advisory Specialist, GS-0501-09, for the Agency’s Wage and Investment Division in Philadelphia, Pennsylvania. Believing that she was subjected to discrimination and harassment based on her disability (mental) and in reprisal for prior protected EEO activity, Complainant filed an EEO complaint on December 18, 2019. The claims were framed as follows: 1) Complainant was subjected to discrimination, including harassment, when, beginning in May 2019: 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. 2022003891 2 a. Her supervisor (Supervisor) sought to discredit her work; b. Supervisor issued her memoranda (e.g. on June 17, August 16, September 19, October 18, and November 8, 2020) with false accusations and inaccurate information, and failed to hold other employees to the same standards; c. She received negative comments in her mid-year performance evaluation narrative; d. She was pulled out of mandatory training, and Supervisor humiliated her in front of taxpayers; e. Supervisor engaged in other harassing behavior including, but not limited to the following actions: ignoring her, using a negative tone of voice, questioning her regarding her contact with taxpayers, having Complainant peer check her work, and speaking about Complainant to a co-worker on November 5, 2019. 2) She was not given a reasonable amount of official time to prepare her EEO complaint. 3) The Agency’s Office of Equity, Diversity, and Inclusion Anti-Harassment Unit appeared to favor management in addressing her harassment allegations When Complainant did not timely request a hearing, the Agency issued a final decision. In its decision, the Agency reiterated its dismissal of claim (3) for failure to state a claim. Regarding claims (1) and (2), the Agency reasoned that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus toward her disability or in retaliation for her prior EEO activity. In its decision, the Agency reasoned that management presented legitimate, non-discriminatory reasons for its actions. For example, regarding claim (1)(a), the Agency found that when an error made by Complainant was discovered, Supervisor discussed the error with her subordinates, but did not mention that Complainant made the mistake. Rather, it was Complainant who had told one, or more, colleagues that she was responsible for the error. In her mid-year evaluation, claim (1)(c), the Agency acknowledged that negative comments were made in the narrative portion, accurately reflecting Complainant’s refusal to participate in team building. According to Supervisor, it was unclear whether Complainant was pulled out of mandatory training (claim (1)(d)) but explained that sometimes employees were asked to attend to taxpayers when they were otherwise occupied. Regarding disciplinary memoranda (claim (1)(b)), management found Complainant’s conduct toward her supervisor to be inappropriate and unprofessional. Management attempted to improve her behavior by imposing progressive discipline. 2022003891 3 Complainant, however, continued to “demonstrate an unwillingness to improve…” Regarding claim (2), the Agency found no evidence that Complainant ever asked for official time to work on her EEO complaint. Complainant appealed the decision to the Commission. In the prior decision, EEOC Appeal No. 2020004982 (June 21, 2022), we affirmed the Agency’s decision. We found that in its decision, the Agency correctly analyzed the facts and law, and Complainant failed to meet her burden to establish that the alleged events were unlawful discrimination related to her disability or prior EEO activity. In her request for reconsideration, Complainant argues that she requested a hearing at the time of her appeal. Further, she argues that the Agency has been “dismissive and downplayed [her] valid claims”. She criticizes the processing of her EEO complaint, pointing to management, the EEO office, the union, and the COVID-19 pandemic. As an initial matter, Complainant is not entitled to a hearing on appeal. The time for Complainant to have requested a hearing was following the investigation of her complaint. She did not avail herself of that opportunity at that time. The appellate decision we stated that Complainant’s brief on appeal was untimely. The record reflects, however, that Complainant sought an extension, which was granted by the Commission in correspondence dated September 8, 2020. Complainant’s statement and other documentation were submitted electronically to the Commission by the modified deadline of November 5, 2020. However, we find that the error in our prior decision was harmless as Complainant’s appellate statement did not alter the outcome. In her submissions, Complainant still failed to establish a nexus between her protected classes and the Agency’s proffered legitimate, non-discriminatory reasons. Similarly, in her request, Complainant sets forth her view of relevant events, but does not provide any supportive evidence. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). 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. 2020004982 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022003891 4 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 15, 2022 Date