Tiffanie S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Dec 31, 2019

2019005254 (E.E.O.C. Dec. 31, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tiffanie S.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 2019005254

Hearing No. 490-2019-00087X

Agency No. IRS-18-0410-F

DECISION

On August 5, 2019, Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a July 30, 2019 final Agency order dismissing her
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Clerk (Office Automated), GS-0303-5, at the Wage and Investment Service Centers, Memphis
Accounts Management in Tennessee.

On March 14, 2018, Complainant filed equal employment opportunity (EEO) complaint 18-0237-
F (Complaint 1). By final Agency decision (FAD) dated March 23, 2018, Complaint 1 was
dismissed because Complainant did not raise the claims with an EEO counselor.

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.
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In the FAD, the Agency advised Complainant that if she wished to pursue these claims, she should
contact an EEO counselor within 15 days of her receipt of the decision, and for purposes of
timeliness the date she filed Complaint 1 would be deemed the date she initiated EEO counseling
on the claims therein. Complainant appealed.

In EEOC Appeal No. 0120181526 (Aug. 15, 2018), request to reconsider denied, EEOC Request
No. 2019000507 (March 8, 2019), we reversed the Agency’s dismissal of a single issue, remanded
it to the Agency for processing, and affirmed the remainder of the FAD on Complaint 1. On
remand, the Agency incorporated the remanded issue into Complaint 2, the complaint before us
(listed below as issue 4).

After reinitiating EEO counseling, Complainant filed Complaint 2 on June 12, 2018. Complainant
alleged that the Agency subjected her to disparate treatment and harassment discrimination based
on her national origin (American), disability, and reprisal for prior protected EEO activity under
Title VII and the Rehabilitation Act when:

1. She was treated unfairly regarding furloughs, time and attendance, tours of duty, appraisals,
reprimands, communications, resources, and accommodations;2

2. She was terminated during her probationary period on March 12, 2018;

3. She was not selected for a Human Resource Assistant position advertised under Vacancy
Announcement 18cshcx0060-0203-5-7-cd3 in the spring of 2018, and other positions; and

as referenced, the Agency accepted/incorporated into Complaint 2 the issue of whether:

4. She was discriminated against on the above bases when in January 2018, she was denied
a transfer to the night shift.

On September 10, 2018, the Agency dismissed issue 1 and part of issue 3 (other positions) of
Complaint 2. On issue 1, the Agency found Complainant did not identify any incidents of
harassment that occurred after March 14, 2014 (when Complaint 1 was filed), and dismissed issue
1 because it was already decided by the EEOC. Regarding the other positions in issue 3, the
Agency referenced the date Complainant filed Complaint 1, and found that while she identified
these non-selections, she provided no dates on when she learned of them.

2 In its March 23, 2018 FAD on Complaint 1, the Agency acknowledged that during her EEO
counseling for Complaint 1 Complainant raised harassment, but dismissed it because she did not
write it down in Complaint 1. In the same FAD, the Agency identified incidents that were included
in the harassment claim, most or all of which were later captured in issue 1 above.

3 In Complaint 1, Complainant alleged discrimination when she was not selected under this same
vacancy announcement.

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Following an EEO investigation on the portion of Complaint 2 the Agency accepted, Complainant
requested a hearing before an Administrative Judge (AJ) with the EEOC on or about January 3,
2019.

On June 11, 2019, while Complaint 2 was pending before an AJ, Complainant filed a civil action
(identified as Civil Action No. 19-cv-02384) in the United States District Court for the Western
Court of Tennessee.4 We take administrative notice that with her civil action, Complainant
included a copy of the Commission’s final appellate decision on Complaint 1 - EEOC Request No.
2019000507.

On July 17, 2019, the AJ granted the Agency’s Motion to Dismiss Complaint 2 because it was the
basis of her civil action in District Court, and ordered the Agency to issue a FAD on Complaint 2.
The Agency then issued a final order fully implementing the AJ’s dismissal. The instant appeal
followed.

On appeal, Complainant argues that EEO Complaints 1 and 2 are separate, do not pertain to the
same issues, and the District Court did not join them. She further argues that 180 days have not
passed since the filing of the administrative complaint that was the basis of a civil action “decided
[emphasis in original] by a United States District Court in which the complainant was a party.”

The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action "shall
terminate Commission processing of the appeal." In relevant part, this applies where 180 days have
passed since the filing of the administrative EEO complaint if an appeal has not been filed and
final action has not been taken, or within 90 days of receipt of the Commission’s final decision on
an appeal. 29 C.F.R. § 1614.407(b) & (c). Commission regulations mandate dismissal of the EEO
complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting resources, and creating the
potential for inconsistent or conflicting decisions, and in order to grant due deference to the
authority of the federal district court. See Stromgren v. Dep’t of Veterans Affairs, EEOC Request
No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513 (October
19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).

The Commission issued its final appellate decision on Complaint 1 on March 8, 2019 (EEOC
Request No. 2019000507), and Complainant filed her civil action on June 11, 2019, within 90
calendar days thereof (as represented in the civil action complaint). Also, Complainant filed her
civil action complaint more than 180 days after she filed Complaint 2 on June 12, 2018, and before
the Agency took final action thereon on July 30, 2019. Accordingly, with respect to Complaints 1
and 2, Complainant satisfied the timing requirements set forth in 29 C.F.R. § 1614.407(b) & (c).

In its motion to dismiss, which the AJ granted, the Agency accurately recounted that in her civil
action complaint at page 9, Complainant represents that Complaints 1 and 2 pertain to the “same
matters: discrimination, retaliation, and wrongful termination”.

4 We take administrative notice that as of December 27, 2019, this civil action was pending.
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In Complaints 1 and 2, Complainant alleged that she was discriminated against when she was
terminated on March 12, 2018. This was specifically a basis of her civil action complaint at 27,
37, 46, 59, and Section V, p. 9.

In Complaints 1 and 2, Complainant alleged that she was discriminated against when her request
to work the night shift was denied. Complainant has explained this was a request for reasonable
accommodation so she could make her daytime medical appointments. Throughout her civil action
complaint, Complainant alleged, sometimes generally, that she made reasonable accommodation
requests that were not acted upon and/or denied.

In Complaint 2, Complainant alleged she was harassed. In her civil action complaint, Complainant
made the same claim, and included most or all of the incidents of alleged harassment alleged in
Complaint 2. See civil action complaint, 17, 21, 25, 27, 30, 39, 46, 52, 61, 66, and 67.

In Complaints 1 and 2 Complainant alleged that she was discriminated against when she was not
selected for various positions. We concede that in her civil action complaint, Complainant did not
specifically make this allegation. But she indicated therein that she had the right to file a civil
action because she received the Commission’s decision in EEOC Request No. 2019000507 (March
8, 2019), attaching the decision which explicitly addressed claims regarding not being selected for
three positions. Also, in her civil action complaint, Complainant represented that Complaints 1
and 2 concern the “same matters: discrimination, retaliation, and wrongful termination”.

Given the above, we find that the AJ properly dismissed Complaint 2 because it was the basis for
a civil action. The final Agency order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request may be submitted via regular mail
to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington,
DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely
filed if it is received by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition
must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

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.

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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 31, 2019
Date