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

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2021002304 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Will K.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2021002304 Agency No. IRSCC-21-0236-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 4, 2021, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, GS-7, at the Agency’s Internal Revenue Service facility in Washington, District of Columbia. On February 19, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), sex (male), color, disability, and reprisal for prior protected EEO activity when, even though it was clear his email had been viewed, he received a delayed response to his request for information regarding how to file a Freedom of Information Act (FOIA) request. 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. 2021002304 2 On Wednesday, January 27, 2021, Complainant emailed an Agency management employee (Manager 1) requesting information for the FOIA contact for the Internal Revenue Service/Chief Counsel. (Complaint File, pp. 87-88). It appears Complainant then filed a FOIA request with the Internal Revenue Service Privacy Unit on January 28, 2021. On February 1, 2021, having yet to receive a response from Manager 1, Complainant emailed a second Agency management employee (Manager 2) questioning the lack of response from Manager 1. Manager 1 responded to Complainant’s email on Tuesday, February 2, 2021 and provided the requested information. On February 5, 2021, Complainant initiated the EEO process and on February 19, 2021, he filed a formal complaint alleging that Manager 1’s delay in responding to his email was prompted by discrimination. The Agency dismissed this claim for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding Complainant was not aggrieved and that this incident was neither sufficiently severe nor pervasive to state an actionable claim of harassment. On appeal, Complainant states he would like to appeal the decision about his FOIA request and contends he has a right to find out the requested information. The Agency contends the dismissal should be affirmed because the EEOC does not have jurisdiction over FOIA claims, because Complainant is not aggrieved, and because Complainant cites no record evidence capable of supporting an inference that the Agency employee was motivated by Complainant’s race, sex, disability, or prior EEO activity in taking six days to respond to his email request. ANALYSIS AND FINDINGS Under 29 CF.R. § 1614.107(a)(1) an agency shall dismiss a complaint that fails to state a claim. This Commission has generally held that complaints involving other administrative proceedings, and related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994); Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009). Additionally, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding. See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994). Here, Complainant’s only allegation involves the processing of a FOIA request. The Commission has long held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations. Gaines v. Dep't of the Navy, EEOC Request No. 05970386 (Jun. 13, 1997). See also Kasi J v. Dep’t of Justice, EEOC Request No. 2021002280 (Jun. 3, 2021); Nicki B v. Dep’t of Veterans Affairs, EEOC Request No. 2020001389 (Sep. 9, 2020); Cortez v. Dep’t of Homeland Security, EEOC 2021002304 3 Request No. 0120160744 (Mar. 18, 2016); Raether v. Dep’t of the Navy, EEOC Request No. 01A42191 (Jul. 15, 2004). To the extent it could be argued this allegation did not involve the processing of a FOIA complaint, the Agency also correctly noted that Complainant failed to state a claim because he is not aggrieved within the meaning of the statute in that he has not alleged he suffered a harm or loss to a term, condition, or privilege of employment. 29 C.F.R. § 1614.107(a)(1); Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant filed a FOIA request the day after his email to Manager 1. Therefore, her delay in responding did not prevent him from timely filing his FOIA request and he has not suffered a harm or loss as a result. For the foregoing reasons, the Agency properly dismissed Complainant’s complaint for failure to state a claim. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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 2021002304 4 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 (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. 2021002304 5 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 July 20, 2021 Date