0120142621
01-06-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120142621
Agency No. HSCBP10392014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 27, 2014, dismissing his 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., 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 an Import Specialist at the Agency's Houston Field Office in Port of Dallas, Texas.
On April 21, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Trinidad) and disability when he became aware that his former co-workers, who were allegedly reassigned due to medical reasons, were able to remain in their same grade while Complainant was not.
Information in the record indicates Complainant was removed from his CBP Officer GS-11 position at JFK Airport as a result of failing a fitness-for-duty examination. Complainant grieved the matter and invoked arbitration. There were three days of hearings. On September 10, 2013, the arbitrator issued a decision finding that the Agency's non-disciplinary removal of Complainant from his position of CBP Officer promoted the efficiency of the service. However, the arbitrator found the Agency failed to consider Complainant for another non-law enforcement position. The arbitrator ordered the Agency to consider Complainant for any vacant non-law enforcement positions for which he qualified, both local and Agency-wide. The arbitrator also stated:
5. The Arbitrator shall retain jurisdiction sine die to address any issues that may arise in the interpretation or implementation of the remedy portion of the award.
In compliance with the arbitrator's award, the Agency requested that Complainant submit an application for employment so it could determine positions for which he qualified. Complainant did so, requesting a position in the Dallas/Fort Worth area, with Florida and Georgia as alternate choices. Complainant was offered, and accepted, the position of CBP Import Specialist, GS-7, at the Port of Dallas, Texas, with saved pay for two years.
Complainant filed the instant complaint, alleging that he found out that co-workers in his old job at JFK who were also reassigned due to medical issues, were allowed to remain there and were reassigned to Import Specialist positions as GS-11s.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that the matter was a collateral attack on the arbitration decision. The instant appeal followed.
ANALYSIS AND FINDINGS
In this case, Complainant elected to challenge his removal from his position at JFK through the grievance and arbitration process. 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 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 his challenges to actions which occurred as a result of the arbitrator's decision is with the arbitrator, as noted in his decision. Complainant may not now attempt to use the EEO process to collaterally attack Agency's actions taken to comply with the arbitrator's award. If Complainant felt that the Agency did not appropriately comply with the arbitrator's decision, he should raise that challenge with the arbitrator.
Accordingly, the Agency's final decision dismissing Complainant's 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
January 6, 2015
__________________
Date
2
0120142621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120142621