Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

05-2015-0269-0500 (E.E.O.C. Jul. 24, 2015)

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

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Request No. 0520150269

Appeal No. 0120131903

Agency No. IRS130223F

DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120131903
(May 6, 2014). 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).
In our prior decision, we reversed the Agency’s dismissal of the instant complaint.
Specifically we found that the nine alleged incidents were evidence of the conditions leading to
Complainant’s constructive discharge claim, and we ordered the Agency to (1) consolidate this
complaint with Agency Complaint No. IRS-13-0066-M which concerned Complainant’s
constructive discharge claim; and (2) process in accordance with 29 C.F.R. § 1614.108.
While EEOC Appeal No. 0120131903 was pending before the Commission, the Agency issued
a final decision on Agency Complaint No. IRS-13-0066-M, with exclusive appeal rights to the
Merit Systems Protection Board (MSPB) on June 26, 2013. Complainant did not exercise her
right to appeal.

In this request for reconsideration, the Agency is essentially requesting clarification. It points
out that even if it rescinds its final decision on Agency Complaint No. IRS-13-0066-M, it
cannot comply with our Order to consolidate the complaints and process in accordance with 29
C.F.R. § 1614.108 because the constructive discharge claim is a mixed claim until the MSPB
declares otherwise. We agree. We have revised the Order below accordingly.
0520150269

2

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. 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
Within 120 day of this decision becoming final, the Agency is ordered to rescind its June 26,
2013 decision in Agency Complaint No. IRS-13-0066-M. The Agency shall then consolidate
Agency Complaint No. IRS-13-0066-M with Agency Complaint No. IRS-13-0223-F and,
treating the nine alleged incidents at issue in Agency Complaint No. IRS-13-0223-F as
evidence in support of Complainant’s constructive discharge claim, process expeditiously in
accordance with 29 C.F.R. § 1614.302(d).

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. § 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
0520150269

3
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

(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

Date
July 24, 2015