Diego A.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 16, 2020

2020002449 (E.E.O.C. Sep. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diego A.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020002449 Hearing No. 430-2020-00028X Agency No. BOP-2018-01054 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated January 8, 2020, implementing the dismissal by an EEOC Administrative Judge (AJ) of a formal 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 On December 18, 2018, Complainant, a former Automotive Worker Supervisor, WS-08, at the Agency’s Federal Correctional Complex in Butner, North Carolina (“FCC Butner), filed a formal EEO complaint. Complainant claimed that the Agency subjected him to discrimination on the bases of color, disability, and in reprisal for prior EEO activity under when, on August 10, 2018, he was bullied and harassed when he visited the institution to complete his Department of Labor, Office of Workers’ Compensation Programs (“OWCP”) paperwork and the Safety Manager spoke to him in an aggressive manner and “got in his face.” 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. 2020002449 2 After its investigation into the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. On November 22, 2019, the AJ issued a Notice of Intent to Dismiss Complainant’s complaint for failure to state a claim. Despite Complainant’s formal objection, the AJ subsequently issued an Order Dismissing Complaint for Failure to State a Claim. In her decision, the AJ dismissed the complaint, pursuant to 29 C.F.R. §§ 1614.103(c) and 107(a)(1), for lack of standing and failure to state a claim. Specifically, the AJ determined that in July 1996, Complainant suffered an on-the-job injury and later “medically retired” from Agency employment. According to Complainant, he was told that he was entitled to additional OWCP benefits under the Federal Workers’ Compensation Act because of his July 1996 on-the-job injury. However, in order to reopen his case to seek additional benefits, Complainant had to submit an OWCP Form CA-2A completed, in part, by the Agency. In August 2018, Complainant returned to FCC Butner to seek assistance in filling out the necessary OWCP form. He claimed that Agency personnel, including the Safety Manager, treated him rudely when he was there and initially refused to complete his Form CA-2A. Eventually the Agency completed the Form CA-2A and provided it to Complainant. Based on these facts, the AJ determined that Complainant was neither an employee nor an applicant for employment with the agency. Complainant had left Agency employment many years prior to this incident. As such, the AJ concluded that Complainant lacked standing to bring a claim in the Part 1614 EEO complaint process and dismissed his complaint for failure to state a claim. In addition, the AJ dismissed the complaint on the grounds of failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the AJ found that Complainant’s claim was a collateral attack on the Department of Labor’s OWCP process. The AJ stated that Complainant should have raised his allegations through the OWCP process and not through the EEO complaint process. The Agency issued its final order adopting the AJ’s dismissal of the complaint for lack of standing and failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes 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). However, 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. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993). 2020002449 3 Under the circumstances presented here, where Complainant was no longer employed by the Agency, it is clear that his efforts to complete his OWCP forms were squarely within the OWCP adjudicatory process. The proper forum for Complainant to have raised his challenges to the alleged actions of the Agency that purportedly interfered with his OWCP rights was within that adjudicatory process rather than with an EEO complaint. The Commission has previously held that an agency's challenges to a complainant's OWCP claim constitutes a collateral attack and thus fails to state an EEO claim. See Cooper v. Dep't of the Army, EEOC Appeal No. 0120122536 (Oct. 10, 2012); Penticuff v. U.S. Postal Serv., EEOC Appeal No. 0120121931 (July 27, 2012); Pagliuso v. U.S. Postal Serv., EEOC Appeal No. 0120120974 (Apr. 30, 2012). Here, the AJ properly dismissed the formal complaint for failure to state a claim as a collateral attack on the OWCP process. Because we are affirming the dismissal as a collateral attack on the OWCP process, there is no need to discuss Complainant’s standing to file an EEO complaint. CONCLUSION The Agency’s final order adopting the AJ’s order dismissing the complaint for the reasons discussed above 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. 2020002449 4 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. 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 September 16, 2020 Date