0120112894
02-08-2012
_____________, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
_____________,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120112894
Agency No. IRS-11-0244-F
DECISION
Complainant filed a timely appeal with this Commission from the
Agency’s decision dated May 12, 2011, dismissing her complaint of
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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Revenue Officer at the Agency’s facility in Philadelphia,
Pennsylvania. On February 22, 2011, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases
of her sex (female) and in reprisal for prior protected EEO when:
1. on unspecified dates her supervisor refused her requests to correct
two Notices of Liens;
2. after her September 18, 2008 resignation from her position, management
did not provide her with her requested departure rating;
3. management did not provide a copy of her official personnel file (OPF)
until August 2010, and did not later add her letter of resignation to
the OPF as requested;
4. management sent information to the wrong unemployment compensation
office at some time because she received the OPF in August 2010; and
5. management failed to provide Complainant with a copy of the Request
for Personnel Action Standard Form 52 with its Privacy Act Statement
for her to complete.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. Specifically, the Agency
found that Complainant failed to show she was aggrieved. The Agency also
dismissed the instant complaint, pursuant to 29 C.F.R. §1614.107(a)(2),
for untimely EEO Counselor contact. On appeal, Complainant reiterates her
contention that the Agency has subjected her to unlawful discrimination.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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
of 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).
We note that the Agency attempted to obtain clarification of the
exact nature of the complaint after the filing of the complaint.
The Commission finds that the Agency properly defined the complaint.
The Commission agrees with the Agency that Complainant has failed to
show how she was specifically aggrieved concerning her employment by
the incidents in the complaint, many or all of which appear to have
arisen after Complainant’s employment with the Agency.1 Furthermore,
none of the incidents rise to the level of severity or pervasiveness so
as to state a claim of harassment.2
CONCLUSION
The Agency’s decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2012
__________________
Date
1 The Agency states that it issued a decision in June 2009, finding
no discrimination concerning Complainant’s claim that she was
constructively discharged.
2 Because we have determined that the complaint was properly dismissed for
failure to state a claim, we need not address the Agency’s alternative
grounds for dismissing the complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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