Lonny C.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.Download PDFEqual Employment Opportunity CommissionMar 7, 20192019000046 (E.E.O.C. Mar. 7, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lonny C.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2019000046 Agency No. HSCBP006812018 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's August 21, 2018 dismissal of 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 From December 2002 through December 2003, Complainant worked as a Customs and Border Protection ("CBP") Customs Inspector, GS-07, at the Agency’s Blaine Washington Port of Entry, in Blaine, Washington. On March 7, 2018, Complainant filed a Formal EEO Complaint alleging that the Agency subjected him to discrimination on the bases of race/color (Black), and reprisal (engaging in prior protected activity) when: 1. On or about June 30, 2004, an EEO Manager and EEO Investigator failed to refer his allegation of a biased EEO investigation (Agency Case No. CBP04073C /044097) for 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. 2019000046 2 EEO counseling in order to interfere with and chill his rights, and to stop his use of EEO process;2 2. On or about April 12, 2009 and February 23, 2010, the Office of Professional Responsibility (“OPR”), Internal Affairs (“IA”), failed to refer his reprisal allegations for EEO counseling in order to interfere with and chill his rights, and to stop his use of EEO process; 3. On or about April 12, 2009 and February 23, 2010, IA failed to provide Complainant with the findings of an investigation into his allegations of reprisal in order to interfere with and chill his rights, and to stop his use of EEO process; 4. On or about April 12, 2009 and February 23, 2010, IA misrepresented the fact that it would conduct a fair and impartial investigation into Complainant's charges; 5. On or about June 5,2009, Agency Attorneys and failed to refer Complainant's allegation of agency interference for EEO counseling in order to interfere with and chill his rights, and to stop his use of EEO process; 6. On or about June 5, 2009, Agency Attorneys misrepresented and concealed their own misconduct during official matters; 7. On an unspecified date, he was prevented from timely pursuing a Rule 60(b) Motion in Federal District Court since his EEO complaints were not referred to EEO Counseling on July 25,2008, November 2008, April 12, 2009, and June 5,2009; 8. In or around August 2009, the Privacy and Diversity Office (“PDO”) improperly dismissed his EEO complaint (Agency Case No. HSCBP076242009), in order to stop his use of EEO process, and to protect high-ranking Agency employees; 9. On or about April 26, 2010, and November 15, 2013, the PDO improperly dismissed his EEO complaint (Agency Case No. HS10CBP100281), to stop him from pursuing a civil action in federal district court and to protect high ranking Agency personnel from charges of interference and corruption; 10. On or about February 2, 2012, and February 10, 2014, a Supervisory CBP Officer failed to refer his allegations of corruption of the Agency’s EEO administrative process for EEO Counseling to interfere with and chill his rights, and to stop his use of the EEO process; and 2 Complainant clarified in the record that he included Claim 1 to be used as background information only, not a “new” allegation of discrimination. 2019000046 3 11. On or about November 30, 2017, the Acting Director, PDO failed to refer Complainant’s allegations of reprisal for EEO Counseling to protect high ranking Agency personnel from charges, to include Agency interference. The Agency dismissed Claims 1 through 10 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. Alternately, the Agency dismissed Claims 2, 3, 4 and 7 for failure to state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible collateral attack on another administrative process, namely OPR. The Agency also dismissed Claims 1, 8, and 9, as well as Claim 11, pursuant to § 1614.107(a)(8), for alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. By way of additional background, in March 2004, Complainant filed an earlier EEO complaint alleging discrimination based on race/color and disability when he was terminated within days of the end his probationary period.3 On June 23, 2005, an EEOC Administrative Judge (“AJ”) issued a decision by summary judgment in favor of the Agency. After a detailed analysis, the AJ concluded that a hearing was unnecessary because Complainant failed to demonstrate that a question of fact existed as to whether the Agency’s proffered legitimate, nondiscriminatory reasons for Complainant’s termination were pretext for discrimination. Rather than appeal to the Commission, Complainant pursued the matter in the United States District Court for the Western District of Washington (“District Court”). On October 3, 2007, the District Court dismissed Complainant’s action “with prejudice,” and without a hearing, in favor of the Agency. Case No. WL 2288062 (W.D. Wash. 2007). The Ninth Circuit Court of Appeals (“Court of Appeals”) affirmed the District Court’s dismissal, “with prejudice,” in November 2008. 304 Fed. Appx. 540, 2008 WL 5272746 (C.A. 9 Wash.). We take this opportunity to note that dismissal “with prejudice” bars “relitigation of any subsequent action involving the same parties and claims” under the doctrine of res judicta. Conway v. Dep’t of the Army, EEOC Request No. 05981007 (Dec. 1, 1989). In 2008, Complainant became aware of a September 5, 2008 decision by an EEOC AJ in a case brought by another Agency employee. In that case, the AJ found that the Agency had improperly “coached” management witnesses and required them to submit their testimony to be “vetted” by agency counsel prior to providing them to the EEO investigation, sometimes resulting in altered or omitted testimony without witness consent. Based on the evidence in this other case, Complainant believed he could prove his initial suspicions of bias during the processing of his initial EEO action, and that management testimony had also been “coached” in his 2003 EEO complaint and that evidence relevant to his race claim had been omitted. As a result, Complainant vigorously sought to reopen his 2004 complaint. 3 Complainant also appealed his termination with the Merit Systems Protection Board (“MSPB”) which dismissed the matter July 25, 2005. 2019000046 4 However, on October 29, 2009, the EEOC AJ denied his “Motion for Reconsideration,” deciding that he failed to establish jurisdiction since the matter had “been litigated in every available and conceivable forum and similarly dismissed.” The AJ also found Complainant failed to establish “newly discoverable” evidence and upheld her 2005 Decision on the merits. Complainant then filed a motion to vacate based on the “newly discovered evidence” with the District Court, which was denied on January 20, 2010. The Court of Appeals affirmed the District Court’s denial on April 15, 2010 (9th Cir. Ct. App. No. 10-35098 (2010)). Unable to re-open his prior complaint, Complainant filed several “new” EEO complaints based on the new evidence, which the Agency dismissed as untimely and/or an attempt to relitigate a previously filed complaint. On appeal, this Commission affirmed the dismissals. See EEOC Appeal Nos. 0120100612 & 0120101387 (April 16, 2010). Complainant also filed a civil action on the same matter. On October 5, 2017, the Court of Appeals affirmed the District Court’s detailed decision denying Complainant’s case on multiple grounds, including failure to timely raise the allegations with an EEO counselor under 29 C.F.R. § 1614.107(a)(2), and the legal doctrine of res judicata, which bars “litigation in a subsequent action of any claims that were raised or could have been raised in a prior action, as Complainant already raised the same matters in his Rule 60(b) Motion to Vacate. See 709 Fed. Appx. 847, aff’ing 107 F.Supp.3d 1161 (May 22, 2015, W.D. Wash.). On December 22, 2017, Complainant initiated contact with an EEO counselor regarding the allegations in the instant complaint. Complainant then filed a formal complaint on the matter, which the Agency dismissed, giving rise to this appeal. ANALYSIS AND FINDINGS We find the record and our regulations support the Agency’s stated grounds for dismissal. Claims 1 - 10 of the complaint occurred years before Complainant sought EEO counseling on December 22, 2017. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Claim 11 was also appropriately dismissed, under 29 C.F.R. § 1614.107(a)(8), as alleging dissatisfaction with the processing of a previously filed complaint. Additionally, we find dismissal is necessary under the doctrine of res judicata. Having thoroughly reviewed the record and history of Complainant’s allegations in both this and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long since been decided. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2019000046 5 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. 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. 2019000046 6 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 March 07, 2019 Date Copy with citationCopy as parenthetical citation