0520120586
02-05-2013
Isaac L. Hykes, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Isaac L. Hykes,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520120586
Appeal No. 0120103160
Hearing No. 490-2008-00133X
Agency No. EEODFS-08-0106-F
DENIAL
Complainant timely requested reconsideration of the decision in Isaac L. Hykes v. Department of the Treasury, EEOC Appeal No. 0120111936 (July 13, 2012). 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(b).
Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the basis of sex (male) and in reprisal for prior protected EEO activity when:
1. His November 28, 2007, request to take leave was denied by his manager (Ml);
2. On January 10, 2008, Ml gave him a written directive to change his input duty day to January 11, 2008; and
3. From January 14 through 17, 2008, Ml changed his work assignment so that he had to perform Form 3210 duties.
The EEOC Administrative Judge (AJ) issued a decision without a hearing. The AJ determined that the alleged incidents were not sufficiently severe or pervasive to amount to discriminatory harassment. Additionally, the AJ determined that there was no evidence that any of the events were based on discriminatory or retaliatory animus. The AJ further determined that Ml denied leave for other employees and did not look favorably on the use of unscheduled leave because of its disruption to the work of the Unit. Further, the AJ determined that the only reason Ml issued the written directive to Complainant to switch schedules with a co-worker was because Complainant refused to comply with her oral instructions and insisted that it be put in writing before he would follow her directions. The AJ noted that Ml stated that if she had not switched their input dates, Complainant would have had ended up performing input duties on both nights. Finally, the AJ determined that performing the Form 3210 duties was part of the Unit's work and, because Complainant worked nights, he processed more Form 3210s than anyone else.
The AJ concluded that the record established that, to the extent possible, the work was divided equally among the employees and there was no evidence that the work was manipulated as Complainant alleged. Accordingly, the AJ found that Complainant was not subjected to a discriminatory or retaliatory hostile work environment. The Agency subsequently issued a final order fully adopting the AJ's decision.
In our previous decision, the Commission affirmed the Agency's final order. The Commission found that Complainant failed to show that he was subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work environment. The Commission further found that Complainant failed to show that the alleged actions were motivated by discriminatory animus. Additionally, the Commission found that, to the extent that Complainant alleged that he was subjected to disparate treatment, Complainant failed to show prove that the Agency's articulated non-discriminatory reasons for its actions were pretext for unlawful discrimination.
In his request for reconsideration, Complainant reiterates arguments raised and considered during the investigation, before the AJ, and on appeal. We note that 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Accordingly, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120103160 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 (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
February 5, 2013
Date
2
0520120586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120586