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

Equal Employment Opportunity Commission

Feb 5, 2019

2019000788 (E.E.O.C. Feb. 5, 2019)

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

Woodrow F.,1
Complainant,

v.

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

Appeal No. 2019000788

Agency No. HS-CBP-01558-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated September 27, 2018, dismissing 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.

BACKGROUND

On May 15, 2018, Complainant, a former Customs and Border Protection Office, assigned to
Newark Liberty International Airport in Newark, New Jersey, filed the instant formal
complaint.2 Complainant claimed that the Agency subjected him to discrimination in reprisal for
prior EEO activity when:

1. on March 3, 2018, he was copied on a letter dated February 26, 2018, from the
Department of Labor, in which he learned that Customs and Border Protection requested
a referee examination regarding his Office of Workers’ Compensations Program (OWCP)

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 The record reflects that in February 2017, Complainant was removed from Agency
employment based on his unavailability for duty.
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claim; and

2. on May 10, 2018, he learned that the Agency refused to split the cost of the transcript for
a Merits Systems Protection Board (MSPB) hearing which was held on May 4, 2018.

In its September 27, 2018 decision, the Agency dismissed the complaint for failure to state a
claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that claim 1 is a
collateral attack on the Department of Labor’s Office of Workers’ Compensation Programs
(OWCP) process and that claim 2 is a collateral attack on the MSPB process. The Agency stated
that Complainant should have raised his allegations through the OWCP and MSPB processes,
and not through the EEO complaint process.

The instant appeal followed.

ANALYSIS AND FINDINGS

An employee cannot use the EEO complaint process to lodge a collateral attack on another
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). The proper forum for
Complainant to have raised his challenges to actions which occurred during the OWCP and
MSPB processes is within that process itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions which occurred through the OWCP and MSPB processes.
The Agency properly dismissed the instant complaint for failure to state a claim.

The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated
herein 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.

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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.

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.
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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

February 5, 2019
Date