Vince D.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 7, 2019

2019000047 (E.E.O.C. Mar. 7, 2019)

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

Vince D.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 2019000047

Agency No. HSCBP006802018

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's September 18, 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

At the time of events giving rise to this complaint, Complainant was a former Agency employee,
having worked for about nine months in 2003 as a CBP Customs Inspector (“CI”) at the Blaine,
Washington Port of Entry.

On December 22, 2017, Complainant contacted an EEO counselor and on March 1, 2018, filed a
formal complaint alleging that the Agency subjected him to discrimination on the bases of race
(Black), color (Black), and reprisal for prior protected EEO activity when:

1. On or about July 25, 2008, the Office of the Inspector General (“OIG”) 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,

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.
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2. In or about November 2008, the Port Director (“PD”) failed to refer Complainant's
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, 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,

4. 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,

5. 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,

6. On or about June 5, 2009, Agency Attorneys 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,

7. On or about June 5, 2009, Agency Attorneys misrepresented and concealed their own
misconduct during official matters,

8. 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,

9. On or about September 3, 2009, the Agency’s Privacy and Diversity Office (“PDO”)
improperly dismissed his EEO complaint (Agency Case No. HSCBP076832009) in
order to stop his use of EEO process, and to protect high-ranking Agency employees,

10. On or about December 4, 2009 and November 18, 2013, the PDO improperly
dismissed his EEO complaint (Agency Case No. HS10CBP001022) in order to stop
Complainant from pursuing a civil action in federal district court, and to protect high
ranking Agency personnel from charges of interference and corruption,

11. On or about May 18, 2010, the PDO improperly dismissed his EEO complaint
(Agency Case No. HS10CBP005043200117) in order 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,

12. On or about November 30, 2017, the Acting Director for the PDO failed to refer his
allegations of reprisal for EEO counseling, in order protect high-ranking Agency
personnel from charges, to include Agency interference.
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The Agency dismissed Claims 1 through 11, pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO contact. Alternately, the Agency dismissed Claims 3, 4, 5, and 8 for failure to
state a claim under § 1614.107(a)(1), finding them to be attempts at an impermissible collateral
attack on another proceeding. The Agency dismissed Claims 9, 10, 11, and 12 pursuant to §
1614.107(a)(8) alleging dissatisfaction with the processing of a previously filed complaint.

The instant appeal followed.

By way of additional background, the record shows that in 2003, Complainant had filed an
earlier EEO complaint alleging discrimination based on race/color and retaliation when he was
terminated during his probationary period. On March 21, 2005, after holding a five-day hearing
on the matter, an EEOC Administrative Judge (“AJ”) concluded that Complainant was unable to
establish discrimination as alleged. Rather than appeal to the Commission, Complainant opted to
pursue the matter in the United States District Court for the Western District of Washington
(“District Court”).2

On September 8, 2006, the District Court dismissed Complainant’s action “with prejudice,” and
without a hearing, in favor of the Agency, and on September 28, 2006, it denied Complainant’s
request for reconsideration. Case No. C05-1308RSM (W.D. Wash.). The Ninth Circuit Court of
Appeals (“Court of Appeals”) dismissed Complainant’s complaint “with prejudice” after he
voluntarily withdrew his case on April 4, 2007. We take this opportunity to note that dismissal
“with prejudice” bars “relitigation of any subsequent action involving the same parties and
claims. 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 show 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 2003 complaint.

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.

2 Complainant also filed a claim with the Merit Systems Protection Board (“MSPB”) under
MSPB Appeal No. SE344304005811 (Dec. 19, 2003) (dismissed in favor of Agency).

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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)).

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 contacted an EEO counselor and later filed his formal
complaint in the instant complaint, resulting in the Agency’s dismissal decision currently on
appeal.

ANALYSIS AND FINDINGS

We find the record and our regulations support the Agency’s stated grounds for dismissal.
Claims 1 - 11 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 12 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.

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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.

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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