0120181768
08-07-2018
Donny F.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service (IRS)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Donny F.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service (IRS)),
Agency.
Appeal No. 0120181768
Agency No. IRS-18-0163-F
DECISION
On May 1, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 3, 2018, dismissing her complaint of unlawful employment discrimination in violation of 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 was a former employee of the IRS. We take administrative notice that she left the IRS effective December 13, 2013.2
On February 3, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on reprisal for prior EEO activity (EEO complaints under the Rehabilitation Act that resulted in a settlement agreement) when in her capacity as a private representative of a corporate client seeking a monetary tax abatement for filing a late tax return due to a medical condition:
1. The Agency's Office of Appeals did not act on the appeal she filed on behalf of her client in May 2017;
2. In November 2017, Identified Person 1 with Agency's Taxpayer Advocate Service (TAS) advised her that TAS will not provide taxpayer advocacy services for her client, that the Office of Appeals will not process or respond to her client's appeal, that her client will be audited, and she will have to go to tax court; and
3. In November 2017, Identified Person 1, as part of the conversation above, told her that that she knew about her EEO case and disability settlement, she will be audited, and her disability retirement is in jeopardy (threat to disability retirement).
The Agency dismissed the complaint for failure to state a claim. It reasoned that the allegation that TAS would not assist with the appeal of the tax matter Complainant filed on behalf of a private client does not affect a term, condition or privilege of Complainant's employment, and is unrelated to her employment. The instant appeal followed.
Complainant reiterates the contentions in her complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered government departments, agencies and units, Part 1614 applies to all employees and applicants for employment therewith.
The events in Complainant's complaint regarding TAS arose in the context of her requesting taxpayer advocacy service for her client's appeal with the Agency's Office of Appeals seeking a tax abatement. Complainant's former employment with the Agency was with the Agency Wide Shared Services, Procurement, Office of Electronic Procurement, Development and Design Branch, and ended over three years before TAS allegedly denied her request for taxpayer advocacy services. TAS's alleged actions were not taken in the Agency's capacity as Complainant's former employer (e.g., - if her former boss in the Development and Design Branch gave her a bad employment reference), they were taken in the context of the Agency declining to grant her request for tax advocacy services. Given this, we find that Complainant's complaint fails to state a claim. 29 C.F.R. � 1614.103(a) & (c).3 Gregory v United States Postal Service, EEOC Appeal No. 01964363 (Jan. 15, 1997) (failure to receive certified mail in a timely manner affected the complainant as a private citizen, not an employee of the postal service. This matter fails to state a claim. The complainant has available the same avenues of redress to lodge complaints about mail service to her home as other private citizens. The EEO process is not the appropriate place to raise this concern); Complainant v. Department of Health and Human Services (Food and Drug Administration), EEOC Appeal No. 0120120578 (Oct. 29, 2014) (the complainant, who was terminated by the Department of Health and Human Services, alleged discrimination when he was notified that a total of three financial accounts in his name were reported to the IRS and a debt collection Agency. His complaint fails to state a claim under EEOC regulations. The proper forum for the complainant to raise his challenges to these matters is under the processes provided by the Debt Collection Act and/or tax collection procedures with the IRS).
To the extent the complaint regards the adjudicatory function of the Office of Appeals - delaying, not acting upon and effectively denying her client's tax abatement appeal - it fails to state a claim because this constitutes a collateral attack on the Agency's tax adjudicatory function, which is appealable to Tax Court. A collateral attack involves a challenge to another forum's proceeding, such as the grievance or injury compensation process. Generally, a collateral attack on another proceeding fails to state a claim. 29 C.F.R. � 1614.107(a)(1); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 24, 1993).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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.
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
August 7, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Documents filed with the EEOC from Complainant's prior complaint IRS-13-0303-F show that she was a Business Operations Specialist, GS-1101-13, in the Agency Wide Shared Services, Procurement, Office of Electronic Procurement, Development and Design Branch, in Oxon Hill, Maryland. She was terminated effective December 13, 2013. We take further administrative notice that on February 6, 2015, the Merit Systems Protection Board dismissed Complainant's appeal of her termination because she withdrew her appeal.
3 The EEO office referred Complainant's claims to the Treasury Inspector General for Tax Administration for its review and determination as to whether to investigate the matter.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181768
5
0120181768