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

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2021000635 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Esmeralda L.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Request No. 2023000015 Appeal No. 2021000635 Agency No. IRS-19-0025-F DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Esmeralda L. v. Dep’t of Treasury, EEOC Appeal No. 2021000635 (August 24, 2022). 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). At the time of events giving rise to this complaint, Complainant worked as a Supervisory Tax Examining Technician, GS-8, for the Agency’s Wage and Investment Division in Kansas City, Missouri. On October 16, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black or Biracial), disability (allergies), 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. 2023000015 2 1. On October 1, 2018, Complainant learned that management had not approved her reasonable accommodation request for a new office; 2. During a conference call on August 29, 2019, a management official chastised Complainant for being “paranoid” and directed her to go back to her corner and do her work; 3. Management has blamed Complainant for discord in the workplace; and 4. On unspecified dates, an unnamed employee, whom Complainant did not know, approached her in the parking lot and said Complainant was waiting for her, and the next day, there was a picture drawn on her vehicle of something being shot at the face of a stick figure on the back window of the vehicle. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When a hearing was not timely requested, the Agency issued a FAD finding no discrimination. Complainant appealed. In EEOC Appeal No. 2021000635, the Commission dismissed the appeal. The prior decision noted that the Certificate of Service accompanying the final Agency decision, stated that the decision was sent to Complainant and her representative via email on August 6, 2020. Complainant’s appeal form stated the FAD was received on August 12, 2020. The prior decision stated that the FAD properly advised Complainant and her representative that they had 30 calendar days after receipt of the decision to timely file an appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than September 20, 2020, assuming receipt on August 6, 2020, or September 26, 2020, assuming receipt on August 12, 2020. However, Complainant waited until October 29, 2020, more than a month beyond the time limit, to file her appeal via fax. The prior decision acknowledged that Complainant experienced deaths and illnesses of family members caused by COVID-19, however, it also found that the reasons provided by Complainant were not sufficient for extending the time limit for filing this appeal. As such, the prior decision dismissed the appeal as untimely filed. In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We note that Complainant provides similar reasons in her request as she did on appeal. 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), Chap. 9 § VI.A (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. 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. 2023000015 3 The decision in EEOC Appeal No. 2021000635 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 March 8, 2023 Date