0120103561
01-31-2011
Hyla F. Olsen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Hyla F. Olsen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120103561
Agency No. IRS-10-0522-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 7, 2010, dismissing her complaint of unlawful
employment discrimination.1
BACKGROUND
On May 12, 2010, Complainant contacted an EEO Counselor alleging
discrimination. When the matter was not resolved informally, Complainant
filed a formal complaint on June 21, 2010. In her complaint, Complainant
alleged that the Agency subjected her to discrimination on the basis of
her social security number when, on May 5, 2010, she was not selected
for the position of Lead Tax Examining Technician. Complainant claimed
that the last digit of her social security number effected her dates for
her performance appraisals and her quality step increase awards used in
rating the candidates for the promotion at issue.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
noting that Complainant failed to allege a basis of discrimination under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., or the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. As such, the Agency
determined that Complainant failed to state a claim. Complainant appealed
asserting that she has been discriminated against even though it is not
one of the traditional bases of discrimination.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). In the case at hand, Complainant has not alleged
that she was discriminated against by the Agency because of her race,
color, religion, sex, national origin, age, disability, or protected
EEO activity. Complainant has clearly indicated that she was treated
differently based on the last digit of her social security number.
Such a claim of discrimination is not within the purview of the laws
and regulations of the EEOC. Therefore, we find that Complainant does
not state a claim of discrimination over which we have jurisdiction.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
decision to dismiss the matter at hand.
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
January 31, 2011
__________________
Date
1 We note that Complainant stated on her appeal that she received the
Agency's decision on July 30, 2010. As such, her appeal dated August 28,
2010 was filed in a timely manner.
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0120103561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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