[Redacted], Roland T., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2022003366 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roland T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022003366 Agency No. HS-CBP-00423-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 18, 2022, dismissing 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., and 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 an Intelligence Research Specialist, GS-0132-13, at the Agency’s Southeast Caribbean Field Intelligence Group, Office of Intelligence facility in Miami, Florida. On December 17, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic),2 color (dark skin), and disability (mental), when on November 2, 2021, the Agency Attorney’s Brief in Opposition to 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 Complainant also identified race as a basis, writing in “Hispanic” next to it on the formal complaint. The Commission considers the term “Hispanic” to denote a national origin rather than a race. 2022003366 2 Complainant’s Appeal [in prior Agency Case No. HS-CBP-01514-2020; EEOC Appeal No. 202000157] contained bias, slander, false statements, character defamation, and an unfair review of Complainant’s appeal and prior EEO complaint. The Agency dismissed the complaint for failure to state a claim, pursuant to C.F.R. § 1614.107(a)(1). It reasoned that Complainant was lodging a collateral attack on another EEO process, specifically the EEO process in a separate case. According to the Agency, Complainant alleged discrimination when, after he filed an appeal with the Commission regarding the final agency decision (FAD) in his prior EEO complaint, the Agency Attorney submitted a brief to the Commission that Complainant believed was biased in favor of the Agency and made false statements against Complainant. Thus, the Agency found, the instant complaint did not state a viable, independent claim of discrimination. CONTENTIONS ON APPEAL On appeal, Complainant argues he did not state that he was conducting a “collateral attack[.]” He submits that assuming he did so is a massive violation of his civil rights and due process as well as “criminal misconduct on your part[,]” presumably referring to the Agency that issued the dismissal currently being appealed. Complainant contends that, in his formal complaint, he was not attacking the Agency Attorney but the Agency, which discriminated against him. For instance, Complainant maintains, there were several areas, in the prior complaint, in which “local and HQ [Headquarters] management” lied. Furthermore, Complainant asserts, he cannot discuss his case without discussing the Agency Attorney. He avers that he was subject to racism, unequal treatment, and bias, which are EEO violations. The Agency submits that it properly dismissed Complainant’s case. It maintains that Complainant was not happy with its statement in opposition to Complainant’s appeal, in the previous complaint (Agency Case No. HS-CBP-01514-2020; EEOC Appeal No. 202000157), which remains open. However, instead of addressing his concerns directly in that appeal’s proceedings, Complainant initiated contact with an EEO Counselor, on November 17, 2021, and filed the instant formal complaint. Because Complainant’s allegations stem from the Agency’s legal defense of the previous case, they cannot stand independently here. The Agency contends that it adequately explained its reasons in its FAD and asks that we affirm its dismissal. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he 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). 2022003366 3 When the complainant does not allege he is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep’t of Def., 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). A collateral attack involves a challenge to another forum's proceeding, i.e., the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers’ compensation process, the tort claims process, and so forth. Jake H. v. Dep’t of the Navy, EEOC Appeal No. 2020005225 (Mar. 2, 2022) (citing Lau v. Nat’l Credit Union Admin., EEOC Request No. 05950037 (Mar. 18, 1996)). Here, the Agency Attorney wrote the legal documents in question as part of the legal proceedings in a previous EEO complaint. Thus, Complainant’s allegations constitute a collateral attack on that proceeding. Therefore, we find the instant complaint was properly dismissed for failure to state a claim. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022003366 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. The court has the sole discretion to grant or deny these types of requests. 2022003366 5 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 6, 2022 Date