EEOC Appeal No. 0120150636
05-07-2015
Complainant v. Dep't of the Treasury
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120150636
Agency No. IRS140529F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 2, 2014, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a seasonal Individual Tax Advisory Specialist at the Agency's facility in Atlanta, Georgia.
On June 20, 2014, Complainant (African American, non-bilingual/non-Spanish speaking) initiated contact with an EEO counselor. She applied for a permanent position on or around December 2012. On or about February 26, 2013, another seasonal employee (Hispanic) was placed in the permanent position. The selection was not made through the competitive process. Rather, it was effectuated through a non-competitive conversion.1 Complainant believed that, based on her appraisal rating and seniority points, she should have been converted rather than the other employee. She alleged she was told the conversion was for bilingual employees. Complainant alleges she did not learn how the other employee became permanent (converted based on a May 2011 recall roster) until June 16, 2014, and sought EEO counseling a few days later. On August 9, 2014, Complainant filed a formal complaint on the matter alleging that the Agency subjected her to discrimination on the bases of race and national origin.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that was previously raised in an earlier EEO complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The record indicates that in March 2013, Complainant had previously sought EEO counseling concerning the same matter. In Agency Informal Complaint No. IRS-12-0363, the Counseling Report shows that Complainant raised claims of discrimination concerning the February 2013 conversion action, as well as the other two competitive selections made around the same time. Complainant later withdrew that informal complaint on April 29, 2013.
We find that the Agency correctly decided that the claim Complainant raised in the instant complaint (IRS-14-0529) is identical to a claim she had earlier raised in IRS-130-0363. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 7, 2015
__________________
Date
1 The EEO counseling report states that in addition to the one position filled by a conversion action, two other positions were filled competitively.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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