0120132855
12-22-2014
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. 0120132855
Agency No. HS-CBP-00574-2013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 28, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Course Developer Instructor at the Agency's Advanced Training Center, Office of Training and Development in Harpers Ferry, West Virginia.
On April 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability.1 In support of his claim, Complainant provided a narrative that included the following events:
1. On February 29, 2012, Complainant was denied a trip to Albania to conduct a training session. Complainant alleged that management told him he could no longer travel because he was a "liability" due to his injury.
2. On or about March 21, 2012, Complainant was denied a trip to San Diego, California to conduct a training session.
3. On March 23, 2012, Complainant was informed that, because he had reached his maximum recovery from his injury and still had some permanent limitations, the Agency would need to search for a position to which he could be reassigned. He was directed to submit an OF-612 form or r�sum� for a job search for an alternative position, and required to turn in his service-issued firearm and body armor.
4. On June 6, 2012, Complainant was offered the position of GS-12 Mission Support Specialist, which he felt was a demotion and declined the offer.
5. On or about January 10, 2013, Complainant was informed by OWCP that the GS-12 Mission Support Specialist position was considered suitable and was the only position he would be offered. He was told that future workers' compensation benefits would be forfeited for refusing to take the position.
In addition, Complainant asserted that he was subjected to discrimination on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
6. On or about March 12, 2013, the Human Resources (HR) Supervisor required an employee to notify her anytime Complainant entered the HR office.
The Agency dismissed the complaint as a whole. The Agency dismissed claims (1) and (2), pursuant to 29 C.F.R. �1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant first sought EEO counseling on January 11, 2013, while the events listed as claims (1) and (2) occurred in March 2012, well outside of the 45 day time frame. The Agency then dismissed claims (3) - (5) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency found that these events were based on Complainant's claim with OWCP and constituted a collateral attack on that process. Finally, the Agency dismissed claim (6), pursuant to 29 C.F.R. �1614.107(a)(1), for failure to state a claim in that the Agency found that Complainant was not harmed by the alleged event. In addition, the Agency held that claim (6) was not likely to deter the charging party or others from engaging in protected activity. This appeal followed.
ANALYSIS AND FINDINGS
Timeliness of EEO Counseling - Claims (1) through (4)
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
It is undisputed that Complainant first initiated contact with an EEO counselor on January 11, 2013, well beyond the 45-day limitation period from the events which occurred in claims (1), (2), (3) and (4). While Complainant argues that these events were part of an overall claim of ongoing harassment of which his timely claims (5) and (6) were part, we agree with the Agency that these are more properly characterized as discrete personnel actions which should have triggered Complainant's responsibility to timely seek EEO counseling. Complainant does not allege that he was unaware of the relevant limitation period, did not suspect disability discrimination at the time, or was otherwise prevented from seeking timely counseling.
Therefore, we find the claims (1) through (4) are properly dismissed for untimely EEO counseling contact.
Collateral Attack - Claim 5
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). Upon review, we concur with the Agency's determination that claim (5) constitutes an attempt by Complainant to lodge a collateral attack on an adjudicatory decision by OWCP. Accordingly, we find that the Agency's dismissal of claim (5), pursuant to 29 C.F.R. � 1614.107(a)(1), was appropriate.
Failure to State a Claim - Claim 6
The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also, EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim).
We find that the single claim of retaliation raised by Complainant - that the Human Resources Supervisor required that she be notified whenever Complainant came to the Human Resources office - is not sufficient to state a viable claim of retaliation. Beyond his bare speculation, Complainant has not explained how it was materially adverse to him, and such action is unlikely to dissuade a reasonable employee for engaging in the EEO complaint process.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision to dismiss the complaint in this matter.
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
December 22, 2014
__________________
Date
1 Complainant injured his shoulder on duty in June 2009, while on deployment in Iraq with the Agency. Complainant had several surgeries, which could not completely address the results of his injury. Complainant filed a claim with the Department of Labor's Office of Workers Compensation Programs (OWCP) and received workers' compensation benefits.
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0120132855
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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