Darius C.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019004197 (E.E.O.C. Sep. 25, 2019)

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

Darius C.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 2019004197

Hearing No. 530-2018-00104X

Agency No. BOP-2017-0250

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated April 29, 2019, dismissing a formal complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant was a probationary Correctional Officer at the Agency’s
Federal Correctional Institution in Fort Dix, New Jersey.

While working a morning watch, in March 2016, Complainant was assaulted by an inmate which
resulted in injuries to his shoulder, neck and ribs. Complainant submitted a claim for workers’
compensation. After initially returning to work, the pain caused him to visit a physician who
advised him that he not work for at least two weeks. On March 21, 2016, Complainant returned
to work. Days later he learned that his workers’ compensation claim was denied. On May 20,
2016, Complainant resigned from the Agency.

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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Following an appeal of his workers’ compensation claim, Complainant was notified that his
claim was accepted on December 12, 2016.

Believing that he had been subjected to disability discrimination, Complainant contacted an EEO
Counselor on December 22, 2016. Informal efforts to resolve Complainant’s concerns were
unsuccessful. On March 21, 2017, Complainant filed the instant formal complaint.

The Agency framed the claims as follows:

1. On March 11, 2016, Complainant was forced to resign in lieu of
termination after receiving a work-related injury; and

2. Management failed to timely submit workers’ compensation documents,
which result in Complainant’s claim being denied on two occasions.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
before an AJ.

On February 6, 2019, the Agency filed a Motion to Dismiss the Complaint. Complainant filed
an Opposition on February 14, 2019. In an Order dated March 21, 2019, the AJ dismissed the
complaint for untimely EEO Counselor contact and, alternatively, for failure to state a claim.2
The Agency issued a decision fully implementing the AJ’s decision.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS
Claim (1)

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.

The record reflects that Complainant initiated contact with an EEO Counselor on December 21,
2016, seven months after his resignation on May 20, 2016, and well beyond the forty-five day
time limit. In opposing the Agency’s motion to dismiss, Complainant argued to the AJ that it
was not until his workers’ compensation appeal, on November 16, 2016, that he “realized I may
have been discriminated against due to my physical disability.”

2 The AJ’s decision also included a brief analysis of the merits of the complaint, concluding that
Complainant failed to establish he was subjected to discrimination.
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Moreover, Complainant asserted that when his workers’ compensation claim was accepted on
December 12, 2016, “[t]hat furthered my suspicion” and was “supporting documentation” that he
had suffered discrimination.

The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive
facts” standard) to determine when the forty-five (45) day limitation period is triggered. See
Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time
limitation is not triggered until Complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent. Here, Complainant
waited long past reasonable suspicion to seek EEO counseling--instead waiting until he had
gathered evidence through the workers’ compensation system to support his claim. Therefore, we
agree that claim (1) was properly dismissed, pursuant to 29 C.F.R. §1614.107(a)(2), for untimely
EEO Counselor contact.

Claim (2)

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Complainant alleges that the “main reason my [workers’ compensation] claim was originally
denied was because the proper paper work was not submitted by the safety department.” The
record reflects that, in addition to his constructive discharge, the Agency’s actions with respect to
his workers’ compensation claim comprise the balance of Complainant’s EEO complaint.
However, complainants cannot use the EEO process to collaterally attack the workers'
compensation process. The Commission has long held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No.
05930106 (June 25, 1993). The proper forum for Complainant to have raised challenges to
actions which occurred during the Office of Workers’ Compensation Programs (OWCP) process
is with the OWCP. Lau v. Nat'l Credit Union Admn., EEOC Request No. 05950037 (Mar. 18,
1996)(allegation that an agency discriminated by providing false or misleading information to
the OWCP does not state an actionable claim) Schneider v. U.S. Postal Serv., EEOC Request
No. 05A01065 (Aug. 15, 2002) (supervisor did not timely submit workers' compensation papers)
citing Johnston v. Henderson, 144 F.Supp.2d 1341 (S.D.Fl. 2001), aff'd without decision, 277
F.3d 1380 (11th Cir. 2001)(mere allegation of improper processing and delay of FMLA forms
insufficient to state a claim); Wade v. U.S. Postal Serv., EEOC Request No. 05980149
(supervisor's delay in providing complainant proper paperwork for OWCP); Pirozzi v. Dep't of
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Navy, EEOC Request No. 05970146 (Oct. 23, 1998)(supervisor made false statements to
OWCP).3

CONCLUSION

The Agency’s decision to fully implement the AJ’s dismissal 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.
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).

3 In light of our decision, the Commission shall not consider the disposition of the subject claims
on alternative grounds.
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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. 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

September 25, 2019
Date