0120160744
03-18-2016
Cortez J.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cortez J.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120160744
Hearing No. 430-2015-000402X
Agency No. HS-TSA-00230-2015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated November 13, 2015, 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
During the period at issue, Complainant worked as a Lead Transportation Security Officer at the Charlotte-Douglas International Airport in Charlotte, North Carolina.
On January 4, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination in reprisal for prior EEO activity when:
on September 17, 2014, the Transportation Security Administration (TSA)'s Freedom of Information Act (FOIA) Officer and Office of Chief Counsel deliberately withheld information and misinformed him about the status of his FOIA request, which had an impact upon his ability to support his claim in his previous EEO complaints.
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. Thereafter, the Agency filed a Motion to Dismiss on September 8, 2015. However, the AJ issued a document entitled "Order Granting Agency's Motion to Dismiss" dated October 26, 2015. Therein, the AJ dismissed Complainant's hearing request, finding that the Commission does not have jurisdiction over the processing of FOIA requests. Consequently, the Agency issued the instant final order on November 13, 2015, pursuant to 29 C.F.R. � 1614.110(b).
In her Order granting the Agency's motion, the AJ found that the record developed during the investigation established the following undisputed facts. In Complainant's previous complaint (Agency Case No. HS-TSA-00046-2013, Hearing No. 430-2013-00293X), the assigned AJ granted the Agency's Motion for a Summary Judgment and entered a finding of no discrimination on December 22, 2014. During the processing of the case, Complainant filed several motions related to discovery alleging that the Agency had withheld information. The Agency complied with the Order. Thereafter, on October 17, 2014, Complainant filed a Motion for Sanctions based on the Agency's actions regarding his FOIA requests. On December 22, 2014, the assigned AJ denied the motion. Specifically, the assigned AJ stated "complaint[ant] is requesting the undersigned sanction the Agency for its actions related to his FOIA request. The Commission has held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA request under the appropriate FOIA regulations."
In its September 8, 2015 Motion to Dismiss, the Agency noted several deficiencies: (1) the Commission does not have jurisdiction over the processing of FOIA requests; (2) Complainant is attempting to re-litigate a discovery dispute from his prior case under the fa�ade of filing a new complaint; and (3) the subject matter has been decided by the Agency/Commission in Campbell v. Department of Homeland Security, EEOC Appeal No. 0120151119, Hearing No. 430-2013-00293X, which is pending before the Commission.
In his response, Complainant asserted that the present matter "is about the manner in which employees of TSA, working in the FOIA branch of that Agency, handled the processing of a request submitted by the Complainant." Complainant stated that "the issue in this case is not about The Office of General Counsel. There is a complaint against the Office of Chief Counsel and will be presented on its own merits." Complainant further argued "the Agency is merely making a very shallow attempt to join the case against members of the Agency's FOIA branch with the forthcoming case against the Office of Chief Counsel." In sum, Complainant argued that "the FOIA branch lied to the Complainant on multiple occasions about the action that they were taking with respect to the accepted procedures of processing." Complainant also challenged the earlier related discovery rulings by the AJ.
The AJ determined that it was clear from Complainant's response that he was challenging the processing of his FOIA request albeit form different departments. The AJ further stated "it is most noteworthy that despite the department Complainant identifies as mishandling his FOIA request or indicating that such mishandling was retaliatory, the legal authority remains the same. The Commission has held that it does not have jurisdiction over the processing of FOIA requests. Therefore, the above captioned complaint is DISMISSED. The matter is returned to the Agency for final processing [emphasis in its original]."
On November 13, 2015, the Agency issued a final order dismissing the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was lodging a collateral attack on the proceedings of another forum, specifically proceedings related to the Freedom of Information Act. The Agency stated that the proper forum for Complainant to have raised a challenge to those decisions would have been through the Department of Justice guidelines governing the Act.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant states that the AJ "dismissed the Complaint for lack of authority regarding the processing of FOIA request after the Complainant made it clear that he was not arguing the process but rather the direct and personal deprivation at the hands of the Agency."
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Collateral attacks to other administrative proceedings fail to state a claim. See Wills v. Department of Defense, EEOC Appeal No. 05970596 (July 30, 1998). Here, Complainant's concerns are in regards to the Freedom of Information Act. The Commission has previously determined that it does not have jurisdiction over the processing of FOIA requests since disputes regarding such requests should be addressed through the approximate Department of Justice guidelines and agency FOIA implementing regulations. See Gaines v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997) (affirming summary decisions dismissing complaints involving two allegations of the Act (EEOC Appeal Nos. 01960796 (October 23, 1996) and 01963493 (October 23, 1996)).
The Agency's final order to dismiss the formal complaint for the reasons discussed here is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
March 18, 2016
__________________
Date
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
0120160744
5
0120160744
6
0120160744