Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120142257 Agency No. IRSCC-14-0260-F DECISION On June 4, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 1, 2014, 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 General Attorney at the Agency's Internal Revenue Service, Office of Chief Counsel, Small Business/Self Employed Unit in New York, New York. On April 22, 2014, Complainant filed a formal complaint alleging that the union discriminated against her based on her sex (female) and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when: 1. On December 19, 2013, she learned that two union stewards sent an email to Agency management accusing her of making racist statements to or about them; and 2. Union management took no remedial action in response to her December 17, 2013, formal grievance filed with it complaining that the stewards engaged in gender and retaliatory based abuse and harassment of other women in the office. As relief, Complainant requested full disclosure of union management's response (which took no remedial action), immediate removal of the union president as president and the two stewards as stewards, a change in the union process for electing stewards, establishment of an effective and transparent process for reporting abuse by union stewards and officers to an unrelated third-party with authority to impose penalties and/or enforce the removal of union stewards and officers, establishment of an effective method of informing union members of the union's duties with respect to them, i.e., how to withdraw from paying dues, whether the union is required to represent non-dues-paying members, the scope of their representation, etc. The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1) & .103. It reasoned that Complainant's claim lay with the union, not the Agency, and it had no control over actions the union may take with respect to its members. On appeal Complainant writes that her April 22, 2014, complaint was against the union for actions taken by the two union stewards, and that her appeal constitutes an amendment to her complaint to allege that Agency management failed to protect her from gender based abuse, harassment, and retaliation by two Agency employees - the stewards. In opposition to the appeal the Agency argues that Complainant is not permitted to amend her complaint on appeal, and that the FAD should be affirmed. ANALYSIS AND FINDINGS The Agency properly dismissed the complaint for failure to state a claim because it was against the union, not the Agency. 29 C.F.R. § 1614.103. Further, there is no provision in our regulations permitting the amendment of a complaint to add new claims on appeal, and we decline to accept such an amendment. Even if we permitted Complainant to amend her complaint, it would still fail to state a claim. Issue 2 regards the union denying an internal grievance filed with the union by Complainant. The Agency has no control over this matter. The relief Complainant requested accentuates that her claim is against the union as she is seeking to remove union officers and address union accountability for performing its duties. The appropriate place to raise such claims is with the Federal Labor Relations Authority. Issue 1 regards two co-worker stewards accusing Complainant of making racist statements to or about them. While not directly on point, the Commission has held that the processing of a complaint by an employee, wherein the employee challenges the filing of an EEO complaint by another agency employee, would have a chilling effect on the filing of EEO complaints by aggrieved persons. Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May 25, 1994). There is no remedial action available when another individual files an EEO complaint as the agency has no authority to restrain an employee from raising EEO violations through the EEO complaint process. Complainant's complaint fails to state a claim. The FAD 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 November 7, 2014 __________________ Date 2 0120142257 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142257