EEOC Appeal 2020001727

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brandy N. Webb, 1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 2020001727
Appeal No. 2019001872
Agency No. IRS-17-0406-F
DECISION ON REQUEST FOR RECONSIDERATION
Complainant 	requested 	that 	the 	Equal 	Employment 	Opportunity 	Commission 	(EEOC 	or
Commission) reconsider its decision in EEOC Appeal No. 2019001872 (November 19, 2019).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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).
At the time of events giving rise to her complaint, Complainant worked as a Tax Examining Clerk
(seasonal), GS-04, at the Agency’s Kansas City Submission Processing Office in Kansas City,
Missouri. On May 17, 2017, Complainant filed an EEO complaint alleging that the Agency
subjected her to harassment and discrimination on the bases of sex and in reprisal for prior
protected EEO activity after a series of events leading up to and including her termination during
her probationary period, effective February 17, 2017.
1 The Commission typically uses pseudonyms in lieu of complainants' real names when publishing
its appellate decisions. 	In this instance, however, Complainant requested that her real name be
used.

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In a letter dated February 13, 2017, the Agency informed Complainant that her termination was
based on incidents that took place on October 19, 2016 and February 8, 2017, when she was
involved in disturbances in the workplace. 	Complainant maintained that the October 19, 2016,
and the February 17, 2017, incidents were the direct result of the harassment to which she was
allegedly subjected, including having to reject the sexual advancements of a supervisory official,
and that supervisor directing other Agency employees to follow Complainant to collect
information about her, moaning in Complainant’s ear, and putting “informants” in a house across
the street from Complainant’s home. 	The Agency found Complainant’s conduct, i.e., throwing
objects, threats of violence, including threats to kill someone, being aggressive, using foul
language, having a pocket knife in her possession, and lunging at an employee while being escorted
out of the facility, to be unsatisfactory for her continued retention as an Agency employee.
The Commission’s previous decision found that there was insufficient evidence to support the
allegation that Complainant’s sex or prior EEO activity played any role in the Agency’s actions,
and that Complainant’s allegations, even if true, were insufficient to support a claim of
discriminatory harassment. 	Regarding her termination, the previous decision found that
Complainant did not establish by a preponderance of the evidence that the legitimate, non-
discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or
were motivated by some unlawful discriminatory animus.
In her request for reconsideration, Complainant stated that the previous decision involved an
“erroneous interpretation of material facts and laws.” 	Complainant, without ever referencing a
specific error in the previous decision, set out in great detail the underlying facts and circumstances
that she maintains led to the incidents that resulted in her termination during her probationary
period.
The Agency argued, in pertinent part, that Complainant’s request should be denied because it is
“[b]ased on nothing more than her disagreement with the FAD [final agency decision]” and the
Commission’s previous decision.
We remind Complainant 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), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). 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 established either criteria here. The Commission has long held that merely rearguing the facts
of a case is improper in a request for reconsideration. 	Bartlomain v. U.S. Postal Serv., EEOC
Request No. 05910436 (Oct. 10, 1991).
Because Complainant has not put forth any arguments which the Commission finds to be material
to the outcome of the underlying decision, or that were not previously considered in rendering the
underlying decision, we find Complainant has not met the criteria for reconsideration.

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Complainant has simply not explained why she believes the previous decision was clearly
erroneous. 	Like the previous decision, we find that Complainant did not establish a claim of
harassment, nor did she prove that her termination was based on discriminatory animus. Moreover,
where, as in this case, a complainant is a probationary employee, we have long held that he or she
is subject to retention, advancement, or termination at the discretion of an agency so long as these
decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No.
01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
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. 	The decision in EEOC Appeal No. 2019001872 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 2, 2020
Date