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

Equal Employment Opportunity Commission

May 26, 2017

0520170177 (E.E.O.C. May. 26, 2017)

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

Priscila F.,1
Complainant,

v.

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

Request No. 0520170177

Appeal No. 0120132563

Agency No. IRS-12-0204-F

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132563
(August 11, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant
a request to reconsider any previous Commission decision 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).

Complainant alleged she was denied a reasonable accommodation when, on November 3, 2011,
she reported that her ergonomic chair was missing and the Agency did not replace it until
January 18, 2012. Our previous decision concluded that the weight of the evidence showed that
the Agency caused the delay in violation of the Rehabilitation Act. Specifically, we found that
Complainant informed the Agency of the missing chair on November 3, 2011. We concluded
that once management concluded that the missing chair was nowhere to be found, it should have
taken immediate steps to procure another ergonomic chair for Complainant. We noted in our

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.
0520170177

2
previous decision that the evidence showed that during the three-month period when
Complainant was without her ergonomic chair, she sent several emails stating that she was in
pain due to the chair she was using and had to take leave because of her back pain. However, as
we noted in our previous decision, the manager waited until December 2011 to submit a request
for a new chair, and the new chair was not actually ordered by the Agency until January 6, 2012.
Our previous decision found no explanation for the delay as evidenced by the email from the
specialist to Complainant when she checked on the status of her chair order.

We also noted in our previous decision that while the manager asserted that Complainant was
offered a loaner chair provided by the vendor, Complainant's testimony, supported by emails
from November 2011 to January 2012, contradicts the manager's assertion. It appears that the
vendor did bring a temporary chair for Complainant. However, it was not fitted with the correct
cushioning and was not given to Complainant. Accordingly, we concluded that the Agency was
primarily responsible for the delay in providing Complainant with a reasonable accommodation.
Our previous decision also concluded that Complainant incurred additional back pain which
resulted in additional leave and leave without pay usage because of the Agency’s unreasonable
delay in providing her with an accommodation.

In support of its request for reconsideration, the Agency argues the factual assertion that
Complainant was provided an adequate loaner chair, and the legal assertion that a period of three
months is, generally, not an unreasonable period of time to wait for an accommodation. We find
that the Agency has not demonstrated that the previous 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. We conclude that the Agency has not put forth any persuasive
arguments to support granting the request for reconsideration.

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. 0120132563 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

The Agency is ordered to take the following remedial action:

1. The Agency shall remove the June 2012 Leave Counseling memorandum and any
references thereto from all of Complainant’s personnel records.

2. The Agency shall review Complainant’s leave record and restore leave used in
connection with the delay in providing Complainant with the ergonomic chair. In
addition, the Agency shall provide Complainant with a back pay award for any use of
leave-without-pay in connection with the delay in securing the ergonomic chair.
0520170177

3

3. Within 15 calendar days of the date this decision was issued, the Agency shall give
Complainant a notice of her right to submit objective evidence (pursuant to the guidance
given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in
support of her claim for compensatory damages within 45 calendar days of the date
Complainant receives the Agency's notice. The Agency shall complete the investigation
on the claim for compensatory damages within 45 calendar days of the date the Agency
receives Complainant's claim for compensatory damages. Thereafter, the Agency shall
process the claim in accordance with 29 C.F.R. § 1614.110.

4. The Agency is directed to conduct training for the Manager who was found to have
violated the Rehabilitation Act. The Agency shall address the Manager's responsibilities
with respect to reasonable accommodation requests.

5. The Agency shall consider taking disciplinary action against the Manager. The Agency
shall report its decision. If the Agency decides to take disciplinary action, it shall identify
the action taken. If the Agency decides not to take disciplinary action, it shall set forth
the reason(s) for its decision not to impose discipline.

6. The Agency shall complete all of the above actions within 120 calendar days from the
date this decision was issued.

POSTING ORDER (G1016)

The Agency is ordered to post at its Wage and Investment Service Center facility copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive
days, in conspicuous places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice is to be submitted to the
Compliance Officer at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The
Agency’s report must contain supporting documentation, and the Agency must send a copy of all
submissions to the Complainant. 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.
0520170177

4
§ 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). 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. 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. Such requests do not alter
the
0520170177

5
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

May 26, 2017
Date