Darius G.,1 Complainant,v.Kristine L. Svinicki, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Apr 23, 2019

2019001105 (E.E.O.C. Apr. 23, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darius G.,1
Complainant,

v.

Kristine L. Svinicki,
Chairman,
Nuclear Regulatory Commission,
Agency.

Appeal No. 2019001105

Agency No. NRC1812

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 5, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for the Agency as a
Reactor Operations Engineer in Washington, D.C.

On May 24, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the bases of race/national origin (Hispanic) and religion (Jewish) when on
January 24, 2018, he received a letter from the Deputy Chief Human Capital Officer denying his
December 21, 2017 request for back pay. The back pay was for a two-year period while he was
on indefinite suspension starting in March 2015.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim, indicating that Complainant had entered into a settlement agreement before the Merit
Systems Protection Board (MSPB) on June 22, 2015, in which he waived any claim to back pay.
The instant appeal followed.

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.
2019001105

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ANALYSIS AND FINDINGS

The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC
Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). In his complaint, Complainant alleged discrimination
when Agency management refused to pay him back pay for the time he was on indefinite
suspension. The record contains a copy of the settlement agreement made before the MSPB
regarding his indefinite suspension, and he agreed to waive any claims to back pay. The EEO
process is not the proper forum for Complainant to have raised his challenge. Any matter
relating to the MSPB settlement agreement and its terms must be raised with the MSPB not
before the Commission. Because Complainant raised and resolved his indefinite suspension
before the MSPB, he cannot now raise it in the EEO complaint process.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 23, 2019
Date