0120111142
09-11-2012
Sydney S. Hart, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Sydney S. Hart,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120111142
Agency No. IRS-10-0774
DISMISSAL OF APPEAL
On December 16, 2010, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated December 8, 2010, finding that while it did not implement settlement agreement dated October 14, 2010, this was because of acts of the Complainant, and hence it was not required to fulfill its obligation.
BACKGROUND
At the time of events giving rise to these events, Complainant worked as an Internal Revenue Agent at the Internal Revenue Service in Baltimore, Maryland.
In September 2010, Complainant contacted an equal employment opportunity (EEO) counselor alleging that she was discriminated against based on her sex (female) and reprisal for prior EEO activity when she received a Mid-Year Performance Review in September 2010 with an overall rating of Fully Successful that was lower than her performance merited and contained inaccuracies. She also attributed the alleged discrimination to a medical condition caused by her gender transition.
On October 14, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The agreement provided, in pertinent part, that:
1. The Agency agrees to the following:
Within 45 days from the signing of this Agreement, Management, Large Business & International (LB&I), Deputy Commissioner International, Director International Individual Compliance will initiate a discussion with the Aggrieved for the preparation of a Career Learning Plan. The finalized Career Learning Plan will be completed by December 15, 2010.
2. The Aggrieved agrees to:
. . .
(C) Within 45 days from the signing of this Agreement, the Aggrieved, Large Business & International (LB&I), Deputy Commissioner International, Director Individual Compliance will meet with Management to discuss the preparation of a Career Learning Plan and complete the finalized copy of the Career Learning Plan by December 15, 2010.
By letter to the Agency dated November 1, 2010, Complainant alleged that the Agency breached the settlement agreement and requested that it implement its terms. Specifically, Complainant alleged that the Agency directed her to turn in all her case files and computer equipment on November 3, 2010, which made it impossible to develop a Career Learning Plan. She requested that the Career Learning Plan be developed immediately.
The record indicates that the Territory Manager, LB&I, emailed Complainant on November 1, 2010, stating that although the Agency terminated her flexi-place agreement on October 25, 2010, she had not reported to her duty office. The Territory Manager wrote that Complainant was notified that she could not work at home or an alternate site, and Complainant indicated she did not intend to report to her government duty station The Territory Manager wrote that for this reason Complainant's cases needed to be reassigned and her Agency equipment returned to her manager. In the email, the Territory Manager notified Complainant that on November 3, 2010, a special agent and another manager would come to her residence to pick up the cases and Agency equipment.
On November 8, 2010, the Agency proposed removing Complainant, in part, for failure to report to her duty office despite repeated management directives to do so. In the proposed removal, the Agency recounted efforts to get Complainant to return to work starting October 14, 2010.
By letter to Complainant dated November 18, 2010, Complainant was advised by her manager that on November 23, 2010, he wished to meet with her to discuss the preparation of the Career Learning Plan at the Agency offices in Baltimore, Maryland. In a follow-up letter to Complainant on November 23, 2010, the manager recounted that Complainant left a telephone message indicating she could not make that date due to a scheduling problem. The manager advised that if she wished to schedule another date to discuss development of her Career Learning Plan, to let him know. He notified Complainant that if he did not hear from her he would consider it her failure to come to the office to participate in the preparation of her Career Learning Plan and therefore they could not accomplish this task and it would be treated as closed.
In its December 8, 2010, FAD on Complainant's breach claim, the Agency concluded that while the Career Learning Plan was not implemented, this was because of the acts of Complainant and hence it was not required to fulfill this obligation. In support of this the Agency cited Lawrence v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01A61907 (June 28, 2006) (agency did not breach a settlement agreement to have meetings on the complainant's Individual Development Plan when the complainant refused to attend meetings. As support, the decision cited 29 C.F.R. �1614.504(c) which provides for a remedy for a claim of breach only where noncompliance was "not attributable to acts or conduct of the complainant.")
On appeal Complainant argues, in relevant part, that she did not report to her duty post on November 23, 2010, to discuss the development of her Career Learning Plan because she was fearful of meeting with her manager. She wrote he was punitive, hostile, and threatening.
In opposition to the appeal, the Agency argues that while Complainant argues she was afraid to meet with her manager, meeting with management was a prerequisite to completing the Career Learning Plan provided for in the settlement agreement. It argues that it has been ready and willing to develop the Career Learning Plan since the settlement agreement was signed, but Complainant has failed to cooperate in the process.
ANALYSIS
On May 31, 2012, Complainant filed a civil action (identified as Civil Action No. 1:12-cv-00885) in the United States District Court for the District of Columbia, alleging the same matters covered in her administrative informal complaint and this case.
Specifically, in �89 of the civil action complaint, Complainant alleged that she received her Mid-Year Performance Review in September 2010, and in response contacted an EEO counselor alleging sex discrimination and reprisal. In �97 Complainant discusses the October 14, 2010 settlement agreement she entered into in the case before us. In �100 Complainant alleged that she was fearful of meeting with her manager. In �107 Complainant wrote about filing her notice of breach of the settlement agreement in case before us. In �111 Complainant alleged that to defend the Agency against a breach claim, on November 18, 2010, her manager issued her a letter requesting that she meet with him on November 23, 2010, to discuss her Career Learning Plan, despite the Agency previously confiscating her equipment and transferring her cases to other agents. In the same paragraph, Complainant added that the proposed removal (which came shortly after the settlement agreement) rendered any attempt to develop a Career Learning Plan a sham. In her civil action complaint counts, Complainant re-alleged and incorporated by reference each and every allegation in the above paragraphs, and alleged gender1 and reprisal discrimination.
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of an EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
Accordingly, pursuant to 29 C.F.R. � 1614.409, Complainant's appeal is hereby DISMISSED.
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
September 11. 2012
__________________
Date
1 In her civil action complaint, Complainant recounted her male to female gender transition, and medical side effects. Complainant also claimed she was treated less favorably than similarly situated male employees.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111142