Request No. 2020002267

Equal Employment Opportunity Commission

Sep 9, 2020

2020002267 (E.E.O.C. Sep. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashaunda G.,1 Grievant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2020002267 Appeal No. 0220180007 Agency No. 0AR5209 DECISION ON REQUEST FOR RECONSIDERATION Grievant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Lashaunda G. v. Dep’t of the Treasury, EEOC Appeal No. 0220180007 (Dec. 17, 2019). 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). In February 2013, the Agency issued Grievant a “not-ratable” performance appraisal for the 2012- 13 performance year. The Union contested the appraisal by filing a grievance in April 2013. The grievance proceeded to arbitration, and hearings were held in June and September 2015. The arbitrator framed the issues as follows: 1. Whether the Agency violated law, rule, and regulation and/or [the previous arbitration awards] when it failed to timely and fully return Grievant to meaningful work, give 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. 2020002267 2 her necessary equipment, training, and authorizations . . . refused to reassign her, and then issued her a not-ratable annual appraisal . . . [for 2012-13]? 2. Whether the Agency continued a hostile work environment and reprisal against Grievant and otherwise continued to discriminate against her in violation of applicable laws by failing to timely and fully return Grievant to meaningful work, give her necessary equipment, training, and authorizations . . . refusing to reassign her, and then issuing her a not-ratable annual appraisal . . . [for 2012-2013]? The arbitrator determined that the appraisal violated the collective bargaining agreement and a previous arbitrator’s award. As for discrimination, the arbitrator found that the “not-ratable” appraisal continued a hostile work environment and constituted reprisal. Further, he concluded that the Agency continued to retaliate and create a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Grievant was awarded several remedies, but, on appeal, the Federal Labor Relations Authority (FLRA) overturned the arbitrator’s decision. In our appellate decision, we affirmed the FLRA’s finding of no discrimination or reprisal. At the outset, we noted that the Commission’s jurisdiction was limited to those matters in which issues of discrimination were actually addressed in the FLRA’s decision, namely the issue of Grievant’s non-ratable appraisal and whether Grievant was subjected to a hostile work environment. On both claims, we found the Agency’s articulated reasons for its actions to be supported by the evidentiary record. As to the appraisal, we found that the reasons for issuing Grievant a non-ratable appraisal included ongoing training that could not be evaluated, Grievant’s absences from work, and the lack of work completed by Grievant as she awaited reassignment to another position. As to her hostile work environment claim, we found that none of the incidents Grievant complained of were severe or pervasive enough to rise to the level of a hostile work environment, and that there was no evidence tying the incidents in question to Grievant’s prior protected EEO activity. 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), at 9-18 (Aug. 5, 2015); 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. Grievant has not done so here. She has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. Grievant is attempting to relitigate her appeal on the merits, raising contentions similar to those that we considered and rejected in our previous decision. 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. 0220180007 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2020002267 3 GRIEVANT’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 Grievant’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 9, 2020 Date