0120161118
06-14-2016
Lionel A.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lionel A.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120161118
Agency No. IRS-15-1616-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 15, 2015, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Internal Revenue Agent, who had worked at the Agency's "SBSE" facility in El Monte, California.
On December 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability ("Mental and Physical"); age (56) and retaliation for his previous participation in the EEO process when:
1. Complainant recently filed for involuntary disability retirement with the Office of Personnel Management (OPM) regarding his alleged involuntary disability retirement;2
2. "Management's retaliatory response to OPM regarding involuntary disability retirement;"
3. Agency's Counsel "unduly interfered in the management process;" and
4. Treasury Inspector General for Tax Administration ("TIGTA) undue interference in the management process."
The Agency found that the issues were addressed in the prior complaint identified as IRS-14-0757-F, which addressed the involuntary retirement and in IRS-0854-M, which was a mixed complaint. The Agency reasoned "with respect to the first two claims in the instant complaint, the Complainant simply rehashes his prior constructive discharge claim on the theory that the Complainant's own "ACT of filing retirement paperwork with OPM allows him to raise this issue again, and file a new EEO complaint due to management's ongoing involvement" in responding to the filing of his paperwork. Further, the Agency dismissed the complaint, finding that "Complainant failed to identify any action that he alleged constituted undue interference and he failed to identify any specific actor."
This appeal followed. Complainant did not file a brief in support of his appeal.
ANALYSIS AND FINDINGS
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(a). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In addition, the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before, or has been decided by, the agency or Commission. Additionally, the Commission's regulation at 29 C.F.R. � provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the Merit Systems Protection Board (MSPB).
In this case, the record shows that Complainant is raising the same issues that were previously addressed in prior decisions or citing his own action as the basis for bringing a new complaint against the Agency.
Complainant cites to his own action, in resubmitting his filing for retirement, as the triggering event that permits him to file another charge. This is not a personnel action executed by the Agency. Complainant failed to identify an action that the Agency took, or failed to take, which caused him harm. Additionally, the record shows that Complainant previously elected to raise the involuntary retirement issue with the MSPB.
Further, although Complainant alleges that there was undue interference with the process, he failed to identify any specific Agency action or any harm caused by the Agency's actions. We note that his complaint claims that he was subjected to harassment. The Commission has held that where, as here, a complaint does not challenge any new agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). This is not the situation in this case. Complainant has not alleged Agency conduct that is new or which is sufficient severe or pervasive to alter the conditions of his employment inasmuch as Complainant has retired.
For these reasons, we find that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered a new harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
June 14, 2016
__________________
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 Complainant maintains that he filed for retirement in July of 2014. He identified the most recent discriminatory event as occurring on July 29, 2014, but does not specify what the action was. He resubmitted his paperwork to the OPM on or around August 31, 2015. He contacted the EEO official on September 2, 2015.
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0120161118