[Redacted], Fred S., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Apr 28, 2022

Appeal No. 2021000958 (E.E.O.C. Apr. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fred S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021000958 Hearing No. 510-2019-00180X Agency No. HS-CBP-01640-2018 DISMISSAL OF APPEAL Complainant filed a formal complaint on June 28, 2018, alleging discrimination based on parental status and reprisal (for alleging discrimination based on his parental status) when: 1. Beginning on April 16, 2018, and continuing, he was subjected to harassment regarding the following: a. On April 16, 2018, a Supervisory Marine Interdiction Agent (SMIA-1) notified him of an observed pattern of leave abuse and requested a doctor’s note to verify his medical treatment. b. On June 6, 2018, SMIA-1 accused him of erroneously reporting Government vehicle mileage in his Government vehicle mileage reports.2 2. On April 17, 2018, SMIA-1 and a second SMIA (SMIA-2) ordered him to relinquish his Government-issued firearm, and, on April 23, 2018, the Director of Marine Operations and SMIA-1 issued Complainant written notice that his Government-issued firearm was being temporarily revoked. 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. 2 Complainant’s reprisal claim only applies to claim 1(b). 2021000958 2 3. On April 24, 2018, SMIA-1 directed Complainant to undergo a fitness for duty examination. 4. On April 26, 2018, SMIA-1 provided erroneous instructions to him regarding the time codes to enter on his time and attendance record. Because the EEOC has consistently held that it does not have jurisdiction over allegations of discrimination based on an employee’s parental status, see Wade H. v. Dep’t of Labor, EEOC Appeal No. 2021005070 (Mar. 24, 2022) (citation omitted), the Agency has implemented procedures to process such claims. These procedures mirror 29 C.F.R. § 1614 with the exception that employees are not entitled to an administrative hearing before an EEOC Administrative Judge, nor may they appeal a final decision to the Commission. After investigating Complainant’s appeal, the Agency erroneously issued him the right to elect a hearing and he requested a hearing on January 4, 2019. On December 9, 2019, the Administrative Judge assigned to the case issued a Notice of Intent to Dismiss due to Complainant’s failure to state a claim for which the Commission has jurisdiction. On the same day, Complainant withdrew his hearing request and asked for a final decision. On February 13, 2020, the Administrative Judge dismissed the hearing request and remanded the matter to the Agency to issue a final decision. On November 23, 2020, prior to the Agency issuing its final decision, Complainant prematurely filed the instant appeal. On June 7, 2021, the Agency issued its final decision finding that Complainant failed to prove that the Agency discriminated against him. Although the final decision indicated that Complainant did not have the right to file an appeal to the Commission, the Agency, nevertheless, provided Complainant with appeal rights to the Commission. On July 7, 2021, Complainant filed a second appeal. On appeal, Complainant only addressed the merits of his discrimination claim. As noted above, parental status is not among the protected bases covered by Federal EEO laws and therefore it is not within our purview. 29 C.F.R. § 1614.101(a). Accordingly, Complainant’s appeal, which is based on allegations of parental status discrimination and reprisal for alleging discrimination based on parental rights, is DISMISSED for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021000958 3 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000958 4 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 28, 2022 Date