Woodrow F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.Download PDFEqual Employment Opportunity CommissionFeb 5, 20192019000788 (E.E.O.C. Feb. 5, 2019) Copy Citation 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. 2019000788 2 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. 2019000788 3 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. 2019000788 4 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 Copy with citationCopy as parenthetical citation