0120072713
09-05-2007
Terri C. Barnes, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Terri C. Barnes,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120072713
Agency Nos. IRS060628F/TD06-2243
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 20, 2007, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
During the relevant period, complainant was employed as a Revenue Officer
trainee at a Savannah, Georgia facility of the agency. She filed a formal
equal employment opportunity (EEO) complaint alleging that the agency
subjected her to discrimination on the bases of race (African-American),
sex (female), color (medium complexion), age (over 40), and reprisal
for prior protected EEO activity when the agency (1) on December 2,
2005, issued her an Opportunity Letter citing unacceptable performance
as well as the performance improvement required1, (2) on March 10, 2006,
denied her career ladder promotion citing unacceptable performance, (3)
on March 10, 2006, issued her a memo titled "Performance Evaluation during
Opportunity Period" reflecting an unsuccessful rating, (4) on March 10,
2006, removed her capability to work off-site due to performance concerns,
(5) on April 19, 2006, issued her a letter proposing her removal, and (6)
on May 8, 2006, initiated a TIGTA investigation based on a training error.
The agency removed complainant from her position for performance issues,
effective November 3, 2006.
The agency dismissed claims (1) through (5), pursuant to 29 C.F.R. �
1614.107(a)(4), as inextricably intertwined with its removal action
that complainant appealed to the Merit Systems Protection Board (MSPB).
The agency stated that its actions alleged in (1) through (5) were due
to unacceptable performance by complainant that ultimately resulted in
her removal. The agency dismissed claim (6), pursuant to 29 C.F.R. �
1614.107(a)(1), as a collateral attack on another forum's process.
The agency explained that TIGTA operates with the same independence and
authority as the Office of Inspector General (OIG) in its investigations
and that the Commission has held previously that OIG investigations do
not render an individual aggrieved. The instant appeal from complainant
followed.
First, a mixed case complaint is a complaint of employment discrimination
filed with a Federal agency, related to or stemming from an action that
can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved
person may initially file a mixed case complaint with an agency or
may file a mixed case appeal directly with the MSPB, pursuant to 5
C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. �
1614.107(a)(4) provides that an agency shall dismiss a complaint where the
complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. �
1614.302 indicates that the complainant has elected to pursue the non-EEO
process. In the instant case, in (1) through (5), complainant alleged
actions that are directly connected or led to complainant's removal
and, hence, are subsumed in her removal action. For instance, where,
as here in (5), an agency proposes to take an action and actually does,
the proposal and the actual action merge together. Finally, as to (6),
the Commission has held previously that being subject to an investigation
alone does not render an individual aggrieved under EEOC regulations. See
Johnson v. Dep't of the Navy, EEOC Request No. 05960699 (April 16, 1998).
Thus, (6) fails to state a claim. Summarily, after careful consideration
of the record, we AFFIRM the agency's decision dismissing complainant's
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 5, 2007
__________________
Date
1 The bases of sex, age and reprisal do not apply to (1).
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0120072713
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072713