0120170597
04-11-2017
Bruce P,1 Complainant, v. Steven T. Mnuchin, 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
Bruce P,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120170597
Agency No. IRS-16-0347-F
DECISION
Complainant filed an appeal with this Commission from the Agency's decision (FAD) dated May 19, 2016, 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. Because we are affirming the FAD on other grounds we need not address the issue of whether or not Complainant's appeal was timely-filed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent at the Agency's Small Business/Self Employed Division facility in El Monte, California. On April 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (unspecified mental and physical disabilities), age (54 and 56 at the time of incidents), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In February 2014, Complainant discovered that unspecified management officials denied his worker's compensation claim;
2. On an unspecified date unspecified management officials sent paperwork to the Office of Personnel Management (OPM); and
3. On January 29, 2016, Complainant received a letter from the Agency's Director of the Office of Civil Rights and Diversity and/or [sic] the Agency's former Director of the Office of Equity, Diversity, and Inclusion.
The Agency dismissed claim 1 for untimely EEO Counselor contact and claims 2 and 3 for failure to state a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Complainant alleges that incident in claim 1 occurred "on or about February 2014" but Complainant did not initiate contact with an EEO Counselor until March 10, 2016, which is beyond the forty-five (45) day limitation period.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. We note that Complainant has not specifically claimed he did not know of the time limits, nor has he explained the reason for his delay, but in his Formal complaint he included a copy of an email he sent to his representative listing the three claims at issue. The email includes the following line "I have seen recent court decisions that upheld an individual's right to file EEO complaints against an Agency (even if the person was not technically an employee). The Agency MUST process the informal complaint." Complaint File, Tab 1, Bates Stamp 00065. Complainant does not state whether or not he is referring specifically to claim 1 or, if he was, when he read the court decision and how it relates to the present claim.
The record shows that Complainant has filed a number of EEO complaints prior to this one and hence we find he had constructive knowledge of the rights and duties of persons seeking redress under EEO laws and regulations, including regulations about time limits for contacting an EEO Counselor. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
With regard to claims 2 and 3, we note that 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). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claims alleging reprisal, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Following a review of the record we find that Complainant fails to state a claim of disparate treatment and/or reprisal with regard to claims 2 and 3. Complainant has not shown how he incurred a harm or loss when unspecified management officials sent unspecified paperwork to OPM, or when he received a letter from management officials in January 2016. Nor do we find that either action is reasonably like to deter Complainant or others from engaging in protected activity. We note in this regard that, according to the EEO Counselor's report, Complainant declined to provide copies of the correspondence referenced in both claims and declined to identify the management officials who allegedly sent paperwork to OPM. On appeal, Complainant has not disputed the Counselor's version of events.
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. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, 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. Following a review of the record we find that the actions alleged in claims 2 and 3 are insufficiently severe and/or pervasive to meet that standard.
CONCLUSION
The FAD is AFFIRMED.
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
April 11, 2017
__________________
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.
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