0120143264
03-10-2015
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120143264
Agency No. IRS-14-0437-F
DECISION
On September 23, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 29, 2014, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 worked as a Management and Program Assistant in the Agency's W&I unit in Oklahoma City, Oklahoma.
Complainant previously filed complaint IRS-13-0528-F (Complaint 1) with the Agency. After processing, Complainant requested a hearing, and the complaint went before an EEOC Administrative Judge (AJ).
While Complaint 1 was pending before the AJ, on July 18, 2014, Complainant filed the complaint before us - IRS-14-0437-F (Complaint 2), alleging discrimination based on disability, age (61), and reprisal for prior protected EEO activity under the ADEA and the Rehabilitation Act. She wrote in Complaint 2 that she attempted to amend Complaint 1, but the Agency's EEO office denied this. At some point, Complainant made a request to the AJ to amend Complaint 1.
By order dated August 21, 2014, the AJ wrote that she reviewed Complainant's request to amend that was submitted to the Agency's EEO Office, and during the initial hearing conference Complainant said she made eight claims in said amendment. The AJ characterized them as follows:
1. Disparate treatment.
2. Conspiracy.
3. Additional unauthorized medical information disclosure.
4. Additional unauthorized disclosure of medical information.
5. Documents during mediation.
6. Harassing email which was sent/received on or about April 16, 2012.
7. Refusal of the Agency EEO Office to amend Complaint 1.
8. Conspiracy regarding an alleged attempt to get Complainant to withdraw Complaint 2.
The AJ ruled that claims 1 and 2 were a legal theory/argument, and not new claims. The AJ advised Complainant that she may raise these matters during the processing of Complaint 1. On claims 3 and 4, the AJ ruled that Complainant may raise additional instances of unauthorized medical information disclosure (at least one instance was already made in Complaint 1), and ordered that she provide the Agency with any information on dates. On claim 5 the AJ ruled that information exchanged during mediation is confidential and may not be used during the hearing. On claim 6, the AJ ruled that Complainant may refer to the email during the hearing as background, but it was untimely counseled as a discreet claim. On claim 7, the AJ advised Complainant that after she made her hearing request on Complaint 1, any request to amend Complaint 1 must be made to the EEOC AJ. On claim 8, the AJ advised Complainant that it was clear to the AJ that she did not understand that after making her request for a hearing, the Agency's EEO Office could not take an amendment on Complaint 1 because it no longer had jurisdiction over Complaint 1.
A review of Complaint 2 reveals an allegation of hostile work environment with eight listed claims. While the AJ's description of the claims is abbreviated, her description matches the order of eight claims in Complaint 2.
The Agency dismissed Complaint 2 for stating the same claims that are already pending before the EEOC.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
On appeal, Complainant writes that the AJ did not address the altered documents that were not exchanged during mediation. As written in Complaint 2, claim 5 read as follows:
5) Altered documents - (First) during Mediation on the first Complaint Area 3 Director [identified by name] would change parts of the Operational Review Findings to remove the disclosure of medical information. (Second) [the Territory Manager] altered Group Meeting Minutes from November 2012[,] when [on] May 8, 2013[,] she added Expectations that she claimed to be part of those original November Minutes....
Based upon a review of the record, we find that the preponderance of the evidence shows that Complainant sought to amend Complaint 1 with the same claims in formal Complaint 2. The AJ made rulings on all these claims, and they are now subsumed into Complaint 1. Complainant disagrees with the AJ's characterization of claim 5. If Complaint 1 is still pending before the AJ, this should be raised with the AJ. If not, and this has not been addressed to her satisfaction, Complainant can raise it on an appeal from Complaint 1.
The FAD 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
March 10, 2015
__________________
Date
2
0120143264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120143264