0120121809
05-10-2013
Henry C. Grayson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Henry C. Grayson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120121809
Agency No. HS-TSA-21385-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 10, 2012, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal at the Agency's Atlanta Field Office facility in College Park, Georgia.
The record indicated that on November 15, 2011, Complainant contacted the EEO Counselor regarding events related to his return from duty from an absence based on an Office of Workers Compensation Program (OWCP) injury. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal complaint dated December 14, 2011.
By envelope post dated January 14, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity1 when:
1. On November 14, 2007, upon returning to duty from an absence related to an OWCP injury, Complainant was denied his "basic employment rights."
2. On January 12, 2010, in retaliatory response to his filing an OWCP Notice of Traumatic Injury (CA-1, #062244800) for an occupational defense tactic training injury, management served Complainant with a Letter of Counseling, singling him out for additional work assignments, and restricted him from being assigned to work lucrative international flights.
3. On June 28, 2011, seven months after reporting discontinued use of medications associated with migraine headaches, the Federal Air Marshal Service (FAMS) Medical Programs Division (MPD) "besieged" Complainant with medical inquiries and advised him to urge his doctor to prescribe less effective drugs for pain management or cease taking the prescribed medicine altogether.
4. On October 5, 2011, FAMS MPD contacted Complainant in order to "bully" him with the possibility of a fitness for duty review.
The Agency acknowledged that Complainant filed the formal complaint but noted that the complaint was filed on January 18, 2012. The Agency dismissed the compliant pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely filing his formal complaint. The Agency stated that Complainant received the Notice of Right to File on December 31, 2011. As such, the Agency determined, that for Complainant to have timely filed his formal complaint, Complainant needed to have postmarked the complaint by January 16, 2012, noting that January 15, 2012, fell on a Sunday. As such, the Agency found Complainant's formal complaint filed on January 18, 2012, beyond the 15 day limit.
In addition, the Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1), for failing to state a claim of reprisal. The Agency indicated that Complainant's prior EEO complaint was filed in May 2011, while the events alleged in claims (1) and (2) occurred in November 2007 and January 2010, prior to when Complainant engaged in protected EEO activity. As such, the Agency determined that Complainant's claims (1) and (2) should also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
This appeal followed. On appeal, Complainant provided proof of his filing of his formal complaint with an envelope postmarked January 14, 2012. As such, Complainant claimed that he filed his formal complaint in a timely manner. Further, he requested that the Commission reverse the dismissal of claims (1) and (2). He noted that he received the disparate treatment related to his OWCP activity as well as his prior EEO complaint. Complainant also argued that the events listed as (1), (2), and (3) "were historical backdrop, provided only to describe the propensity for harassment by the [Atlanta Field Office] has had regarding [Complainant's] OWCP injury filings." As such, Complainant asserted that the Agency's management "has a history of exploiting [his] OWCP Notice of Occupational Injury filings (a prior protected activity) as a means of intimidation and harassment to dissuade [Complainant] from engaging further in that protected activity." In conclusion, Complainant requested that the Commission assist him in this matter for he fears for his own employment position when he returns from his OWCP injury.
ANALYSIS AND FINDINGS
Untimely Formal Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Complainant has provided evidence that he filed his formal complaint on January 14, 2012. The record showed that he received his Notice of Right to File his formal complaint on December 31, 2011. As such, we conclude that the Agency erred in dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for Complainant has clearly complied with the 15 day time limit.
Failure to State a Claim.
The Agency also dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. We note that Complainant, on appeal, clarified his position on his complaint and the events raised therein are presented to show a case of harassment on the part of the Agency regarding his OWCP injury filings. Based on the Commission's review of the complaint at hand and Complainant's submission on appeal, Complainant has asserted a claim of harassment based on his OWCP claim.
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. Complainant's claim constitutes a collateral attack on the OWCP proceeding. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Willis v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the OWCP proceeding was in that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process. As such, we find that claims (1) and (2) were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Claims (3) and (4)
Finally, as for claims (3) and (4), as stated above, these claims were improperly dismissed for failure to file a formal complaint in a timely manner. The Agency did not separately dismiss claims (3) and (4). Further, we note that these events occurred after Complainant had engaged in his prior protected EEO activity. As such, we discern no basis for dismissing claims (3) and (4).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal albeit on alternative grounds of claims (1) and (2). However, we REVERSE the Agency's dismissal of claims (3) and (4) and REMAND claims (3) and (4) for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims, namely (3) and (4), in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2013
__________________
Date
1 The record indicated that Complainant was a witness in the EEO Complaint of a co-worker.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121809