[Redacted], Nicolle D., 1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Appeal No. 2020000404 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicolle D.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2020005118 Appeal No. 2020000404 Agency No. IRS-19-0702-F DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020005118 (August 27, 2020). 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 Revenue Agent, 0512, GS-12, at the Agency’s Small Business/Self-Employed Examination Operations facility in Milwaukee, Wisconsin. On May 20, 2019, Complainant filed a formal complaint, via electronic email, alleging that the Agency subjected her to discriminatory harassment on the bases of race/national origin (Mexican) and reprisal for prior EEO activity, beginning on February 26, 2019 and continuing until April 22, 2019, citing numerous alleged instances. 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. 2020005118 2 That same day, the Agency sent Complainant an email asserting that her email had been blocked because it contained potential unencrypted sensitive data, in violation of Agency policy. The Agency informed Complainant that she should remove any such information before attempting to re-send the message. Complainant subsequently resent her formal complaint on August 5, 2019. On September 27, 2019, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.106(b) and 29 C.F.R. § 1614.107(a)(2), as untimely filed, noting that although Complainant emailed her formal complaint to the appropriate Agency inbox on May 20, 2019, it was not actually delivered, and therefore not considered received by that date. Complainant appealed the decision. In our prior decision, we determined that Complainant emailed the formal complaint within the 15-day time limit and noted that the Agency’s subsequent email, warning Complainant that her email contained sensitive data, did not clearly indicate that her email had not been delivered. Under these circumstances, we exercised our discretion to equitably toll the 15-day time limitation. 29 C.F.R. §1614.604(c). Accordingly, the previous decision remanded the matter to the Agency for further processing. On September 11, 2020, the Agency submitted its Request For Reconsideration (RFR). The Agency requested that the Commission reconsider the August 27, 2020 decision claiming that the previous decision involved a clearly erroneous interpretation of material facts and law; and if the decision was allowed to stand, it would have a substantial impact on the policies, practices or operations of the Agency. In support of its RFR, the Agency cited to a variety of cases regarding timeliness and argued that those matters were most similar to the issue at hand and should be similarly dismissed. The Agency asserted that the May 20, 2019 date should not be considered the filed date because it was not actually delivered to the Agency on that date. The Agency reiterated that the email was clearly blocked due to the potential unencrypted sensitive information. The Agency argued that because the email was blocked, and Complainant was aware of this due to the Agency’s May 20, 2019 email response, it would have been clear to her that her complaint was not actually delivered. The Agency argued that since Complainant did not submit a new email formal complaint until August 5, 2019, her lack of diligence did not warrant equitable tolling. Upon review, we determine that the matters addressed by the Agency in the instant request were raised or could have been raised below. For example, the Agency provided a detailed RFR, but this brief did not provide any persuasive arguments for overturning our prior decision. We considered the arguments that were provided but emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. We remind the Agency that 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. Based on the Agency’s RFR brief, we find that it has not done so here. 2020005118 3 CONCLUSION 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. 2020000404 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 (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020005118 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 December 29, 2020 Date