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

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020003732 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Steven T.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2021000603 Appeal No. 2020003732 Hearing No. 460-2020-00110X Agency No. IRS-17-0724-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. 2020003732 (September 30, 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). During the relevant time, Complainant worked for the Agency as a Revenue Officer Advisor (ROA) in Houston, Texas. On June 15, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on sex (male), age (over 40), disability (diabetes, high blood pressure, high cholesterol, generalized anxiety disorder) and retaliation (prior 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. 2021000603 2 on May 5, 2017, he was constructively discharged when he resigned2 due to ongoing harassment and/or disparate.3 Although Complainant initially requested a hearing before an EEOC Administrative Judge (AJ) on his constructive discharge claim, he subsequently withdrew his request. On March 31, 2020, the AJ assigned to the case remanded the matter to the Agency for a final decision. In its final decision, the Agency found no discrimination. The Agency stated that assuming, arguendo, Complainant established a prima facie case of discrimination based on sex, age, disability and retaliation, Agency management articulated legitimate, nondiscriminatory reasons for increasing his workload and its poor evaluations of his performance. Although Complainant mostly attributes the changes in his duties and the assessment of his performance to his prior protected activity in 2014 and October 2015, the supervisor indicated that shortly after she became his manager, she began making adjustments to his workload because he was the only ROA in the group that who was not processing lien certification cases, which is a priority. Moreover, his inventory was also lower than that of other employees in the group and was comprised primarily of cases that required only monitoring with very few set deadlines. Moreover, the Agency determined that Complainant’s constructive discharge claim failed because he voluntarily retired after talking to the union president and discovering that his employment would be terminated. In EEOC Appeal No. 2020003732, 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 attached a declaration in which he raises new claims not previously presented in this case. Complainant argues that the AJ did not require the Agency “to provide inventory reports which should have shown how many cases were closed and new cases added to relevant inventory, which would have raised critical genuine issues of material fact pertaining to harassment, hostile work environment, retaliation, and pretext.” In response, the Agency argued that Complainant’s new claims should not be considered on appeal. Specifically, the Agency asserted that Complainant did not provide any argument or evidence to show that the new claims were not available during the investigation and that that the new evidence could not have been presented to the AJ “during the hearing phase, nor did he provide any explanation as to why they were not provided to the investigator during the investigative stage or the Administrative Judge during the hearing stage.” 2 Although Complainant’s complaint maintained that he resigned, the record indicates that he retired from Agency employment. 3 The complaint contained additional claims concerning a denial of reasonable accommodation and harassment. These claims were processed separately from the constructive discharge claim because it was initially considered a mixed case complaint. Those other claims are the subject of another appeal which is currently pending before the Commission and will not be addressed in this decision. 2021000603 3 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. 2020003732 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 January 13, 2021 Date