[Redacted], Dionne W., 1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service (IRS)), Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2021000322 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dionne W.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service (IRS)), Agency. Appeal No. 2021000322 Agency No. IRS-20-0538-F DECISION On October 7, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 10, 2020, 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 employed by the Agency as a Tax Examining Technician, GS-0592-05, at Wage and Investment in Ogden, Utah, until separating from the Agency on June 30, 2020. On August 25, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination based on her disability and reprisal for prior protected EEO activity when the Agency: 1. from around March 2020 - May 2020, failed to process her Office of Personnel Management (OPM) disability retirement forms in a timely manner without unreasonable delay; 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. 2021000322 2 2. on or about June 23, 2020, intentionally completed OPM disability retirement forms 3112B and 3112D using language designed to harm her; and 3. from about July 1, 2020 onward, unreasonably delayed providing responses required for her unemployment claim. The Agency dismissed issues 1 and 2 because Complainant had previously alleged they breached a September 9, 2020 settlement agreement she had with the Agency, and it had already issued a final determination on September 4, 2020. On September 4, 2020, the Agency found it did not breach this settlement agreement regarding the timing of its processing of the above forms or the way it completed forms 3112B and 3112D. Complainant appealed this determination to EEOC, which assigned it appeal docket number 2021000678. The appeal is still pending. As such, the Agency dismissed issues 1 and 2 under 29 C.F.R. § 1614.107(a)(1) because they stated the same claim decided in its September 4, 2020, final determination. The Agency also dismissed issue 2 for failure to state a claim because it constitutes a collateral attack on OPM’s disability retirement adjudication process. It dismissed issue 3 for failure to state a claim because Complainant did not allege the purported delay caused her any harm. The instant appeal followed. ANALYSIS AND FINDINGS We need not decide whether issues 1 and 2 state the same claim that was decided on September 4, 2020 (no breach) because as claims of discrimination they fail to state a claim. Specifically, a complainant may not use the EEO complaint process as a way to lodge a collateral attack on another proceeding. Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998). This rule has been applied where a complainant alleged in the EEO process that his agency delayed submitting his retirement documentation to OPM. See, Hopper v. Department of Health and Human Services, EEOC Appeal No. 0120055470 (Nov. 28, 2007). The same rule has been applied where a complainant alleged in the EEO process that his agency answered questions on his disability retirement application in a manner in which he disagreed for the purpose of having OPM delay or disapprove his application. See, Jermaine I. v. Energy, EEOC Appeal No. 2020004030 (Sep. 24, 2020). And it has been applied where a complainant alleged that her agency submitted information to the New Jersey unemployment insurance function that resulted in her unemployment claim being denied by New Jersey. Hester v. Department of Defense, EEOC Appeal No. 0120180625 (Feb. 28, 2018). Issues 1, 2 and 3 are dismissed for failure to state a claim because they constitute collateral attacks on other proceedings. The FAD is AFFIRMED. 2021000322 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000322 4 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 January 25, 2021 Date