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

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2019005025 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosendo D.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2021003519 Appeal No. 2019005025 Agency No. IRS-13-0657-F DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005025 (April 15, 2021). 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 period at issue, Complainant worked as an Internal Revenue Agent, GS-11, in the Agency’s Small Business/Self-Employed Division (SB/SE), Examination Operations in El Monte, California. On December 6, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability, age (54), and reprisal for prior protected EEO activity when: 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. 2021003519 2 1. on September 9, 2013, Complainant received a memorandum concerning his failure to maintain a regular work schedule due to his absences; 2. on September 12, 2013, Complainant received a memorandum concerning an unacceptable doctor’s note he had provided; 3. on September 16, 2013, Complainant received a memorandum concerning his performance improvement plan (PIP), advising that if his performance continued to be minimal and his failure to improve may result in various personnel actions; 4. on or about September 16, 2013, he received a lowered appraisal rating for the rating period ending on August 16, 2013; 5. on October 21, 2013, Complainant was excluded from consideration in the solicitation for rotational assignments within the Special Enforcement Program (SEP) group; and 6. on October 30, 2013, Complainant was ranked below the Best Qualified (BQ) cut-off score to be considered for selection to the position of Disclosure Enforcement Specialist, announced under Vacancy Announcement No. 13CW5-PGN-84-1801-12-13J12. The Agency accepted the formal complaint for investigation. Between March and July 2014, the EEO Investigator sought a declaration from Complainant regarding his claims. Complainant never responded. On June 27, 2014, Complainant’s representative prepared a draft declaration for Complainant to review. Complainant never reviewed or signed the draft declaration. However, the unsigned declaration was provided to the EEO Investigator. The investigation concluded without any statement from Complainant. The investigative record reflects the following pertinent matters relating to the subject claims. On September 9, 2013, Complainant received a memorandum concerning his failure to maintain a regular work schedule due to his absences. Complainant’s first line supervisor, the Group Manager (S1) stated that Complainant had chronic absenteeism. S1 consulted with the Labor Relations department prior to issuing the memorandum. On September 12, 2013, in connection to the prior memorandum, Complainant received a memorandum concerning an unacceptable doctor’s note he had provided. S1 noted that the provided medical note contradicted Complainant’s actual work schedule by requesting that Complainant be excused from work for days that Complainant had actually reported to duty, and not the days that he was absent without prior authorization. Complainant did not address the discrepancy but asserted that he was frequently sick which resulted in unscheduled absences. On September 16, 2013, Complainant received a memorandum concerning his performance improvement plan (PIP). The memorandum detailed numerous deficiencies in Complainant’s work and explained that if Complainant failed to show any improvement during the PIP period then he would be subject to various personnel actions. Complainant asserted that he was never given expectations at the beginning of the rating period. Even if he did, the expectations were set for a “normal, healthy individual without any disabilities.” 2021003519 3 On October 21, 2013, Complainant was excluded from consideration in the solicitation for rotational assignments within the Special Enforcement Program (SEP) group. Complainant asserted that S1 and S2 colluded to prevent him from getting an SEP assignment. S1 denied any involvement but noted that SEP assignments were for GS-12 and GS-13 employees only, and that Complainant was a GS-11 employee. On October 30, 2013, Complainant was ranked below the Best Qualified (BQ) cut-off score to be considered for selection to the position of Disclosure Enforcement Specialist, announced under Vacancy Announcement No. 13CW5-PGN-84-1801-12-13J12. A human resource specialist (HR1) working on the vacancy stated that applicants were ranked under three categories: Best Qualified, Highly Qualified, and Qualified. Applicants had to be placed in the Best Qualified category to be placed on the Selection Certificate. Complainant was ranked in the Qualified category and, therefore, not interviewed. He asserted that he would have made the Best Qualified ranking if not for his biased performance appraisal. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). A hearing was requested. On April 29, 2019, the AJ issued an Order Dismissing Request for Hearing and Directing Agency to Issue Final Decision (Order). The Order was based on Complainant’s ongoing failure to prosecute his complaint, both when he was represented and after he proceeded without representation. Specifically, Complainant failed to respond to the Agency’s discovery requests and ignored the AJ’s order compelling responses. Complainant failed to appear at various conference calls and disregarded the AJ’s Order to Show Cause for his failure to appear at various conference calls and disregarded the AJ’s Order to Show Cause for his failure to comply. Based on Complainant’s failure to comply with the order compelling discovery and failure to show good cause for not complying with the order, the AJ dismissed Complainant’s hearing request as a sanction and remanded the case to the Agency for a final decision. On June 7, 2019, the Agency issued a final decision which concluded that Complainant failed to prove that he was subjected to discrimination or retaliation as alleged. Complainant appealed the decision. In EEOC Appeal No. 2019005025, we concluded that the evidence of record fully supported the Agency’s decision that Complainant’s allegations of discrimination had not been proven. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. 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. 2021003519 4 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. 2019005025 remains 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 September 7, 2021 Date