[Redacted], Mickie B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021003648 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mickie B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021003648 Agency No. IRS-21-0304-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 12, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Attorney (Estate Tax) at the Agency’s facility in Laguna Niguel, California. On April 30, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, national origin (Mexican), sex (female), and disability and in reprisal for prior protected activity (unspecified). On May 12, 2021, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: Whether Complainant was subjected to discrimination, including harassment, on the bases of race, sex, national origin, disability, parental status, and in reprisal for prior protected activity when her supervisor delayed and provided insufficient/inaccurate information for her worker’s compensation documentation (OWCP). 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. 2021003648 2 The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that the Complainant’s complaint was a collateral attack on the OWCP process. The Agency also noted that the basis of parental status in not within the Commission’s jurisdiction but is a prohibited basis of discrimination via Executive Order. The instant appeal followed. In response, the Agency reiterates that Complainant’s complaint is a collateral attack on the OWCP process. ANALYSIS AND FINDINGS To the extent that Complainant is alleging that management delayed in submitting her OWCP paperwork and provided false or inaccurate information pertaining to her OWCP claim, the Agency properly dismissed this matter for failure to state a claim. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140240 (Feb. 21, 2014) (claims concerning delays in submitting paperwork to OWCP or submitting incomplete or faulty paperwork constitute a collateral attack on the OWCP process); Bellino v. Dep’t of Transp., EEOC Appeal No. 0120072412 (Jan. 9, 2009) (claims that the agency provided false information to OWCP constituted a collateral attack on the OWCP process). We further find that the Agency properly dismissed the basis of parental status because the Commission does not have jurisdiction over parental status claims. See Complainant v. Dep’t of the Treasury, EEOC Appeal No. 0120143110 (March 10, 2015). We find, however, that a review of Complainant’s formal complaint and pre-complaint documents reflect that she is also alleging that she was subjected to a hostile work environment by Agency management with respect to matters other than those related to the OWCP process.2 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. 2 Complainant, in her formal complaint, asserts that not all of her claims were included in the “counselor’s closing letter.” 2021003648 3 Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Complainant, in an attachment to her formal complaint, asserts that she is disabled with medical restrictions/limitations and that the Agency rescinded its agreement to allow her to telework which constituted “constructive termination.” In addition, Complainant asserts that the Agency denied her request to transfer to a closer office which would have assisted with her medical restrictions. Thus, we find that Complainant is alleging, as part of her hostile work environment claim, that the Agency denied her a reasonable accommodation on an ongoing basis. In the attachment to her formal complaint, Complainant further asserts that management took her laptop away, criticized her for her disability-related absences, threatened her with termination, told she should quit, and made “sexist” comments to her related to her marriage.3 Complainant asserts that these circumstances resulted in her applying for disability retirement. When viewing these alleged matters collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment. Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s claims that the Agency delayed in providing pertinent information to OWCP and provided false information to OWCP. In addition, we AFFIRM the Agency’s final decision dismissing the basis of parental status. However, we REVERSE the remainder of Complainant’s claim, defined herein as a hostile work environment claim, and we REMAND these matters to the Agency for further processing in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims (defined herein as a hostile work environment claim) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 3 According to the EEO Counselor’s Report, Complainant asserts that a named manager, after reviewing her joint income tax return, stated that she needed to quit work and become a housewife, as her husband made too much money. 2021003648 4 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2021003648 5 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 2021003648 6 In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 September 21, 2021 Date