0120161815_0120161816_0120161817_0120161818
10-07-2016
Hershel B.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hershel B.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.
Appeal Nos. 0120161815, 0120161816, 0120161817 & 0120161818
Agency Nos. DTRA-16-J9-003; DTRA-16-J9-004; DTRA-16-J9-005; DTRA-16-J9-006
DECISION
Complainant filed timely appeals with this Commission from the Agency's decisions dated March 11, 2016, dismissing his complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Pursuant to 29 C.F.R. � 1614.606, we consolidate the four appeals into this single decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Integration Specialist at the Agency's Logistics Directorate facility in Albuquerque, New Mexico. The record indicated that he was removed from his position effective September 30, 2014.
Complainant appealed the removal action to the Merit Systems Protection Board (MSPB). By decision dated December 7, 2015, the MSPB Administrative Judge (MSPB AJ) reversed the Agency's removal action. The record indicates that the Office of Personnel Management (OPM) granted Complainant's application for disability retirement effective October 1, 2014.
Following the MSPB's decision reinstating Complainant to his prior position, he contacted the EEO Office alleging discrimination. On February 21, 2016, Complainant filed four formal complaints alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic), disability, age (54), and reprisal for prior protected EEO when:
1. The Agency failed to properly credit him for his time served fighting forest fires and his time served since September 30, 2014, thus adversely affecting his cumulative Federal Time-In-Service.
2. From an unspecified date in September 2012 to September 30, 2014, Complainant has been subject to disparate treatment after acquiring injuries due to falling down the stairs at the Agency's facility.
3. On an unspecified date in February 2014, Complainant was subjected to whistleblower retaliation due for contacting the Agency Inspector General regarding the fraudulent loss of $100,000 and abuse of government time.
4. A witness Complainant called to participate in his MSPB appeal was intimidated by the Agency and subsequently removed from federal service.
The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. �1614.107(a)(2) finding that Complainant contacted the EEO Counselor in an untimely manner. The Agency then dismissed claims (2) and (3) pursuant to 29 C.F.R. �1614.107(a)(4) for raising the same claims in an appeal before the MSPB. Finally, the Agency dismissed claim (4) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. In addition, the Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. �1614.107(a)(9)(ii) for abuse of process.
Complainant appealed. Complainant indicated that he was told that he could not file complaints when he was removed from the Agency because he was no longer employed by the Agency. After the MSPB appeal returned him to his prior position, Complainant indicated that he contacted the EEO Office in order to pursue these claims. Further, Complainant alleged that the Agency had not implemented the MSPB decision. The Agency responded. The Agency reasserted its reasons for the dismissal and included information from Complainant's MSPB appeal.
ANALYSIS AND FINDINGS
Failure to State a 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. 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).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another 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). The proper forum for Complainant to have raised his claim regarding the witness for his MSPB appeal with the MSPB itself.2 Therefore, we find claim (4) is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.3
The Commission also notes that in claim (1), Complainant asserted that the Agency failed to credit him for Federal Time in Service which adversely affected his disability retirement. Upon review, we find that such a claim constitutes a collateral attack. Complainant should raise his concerns regarding his Federal Time-in-Service with OPM as it relates to the terms of his disability retirement. Therefore, we find that claim (1) should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. As we are affirming the dismissal of claim (1) for failure to state a claim under the EEO complaint process, we have no need to address its timeliness, an alternate dismissal ground asserted by the Agency.
Previously Raised with MSPB
A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non - EEO process. 29 C.F.R. �1614.107(a)(4).
Upon review of the record, the MSPB AJ decision indicates Complainant alleged that the Agency failed to accommodate him due to his injury in "late 2012" at which point he began seeking reasonable accommodation. In addition, in his MSPB appeal, Complainant alleged that he was subjected whistleblower retaliation for filing a complaint with the Inspector General. We find that the MSPB AJ addressed Complainant's claims and, therefore, we determine that claims (2) and (3) were appropriately dismissed pursuant to 29 C.F.R. �1614.107(a)(4). Again, because we are affirming the dismissal of claim (2) on this basis, we do not have to review the Agency's alternate argument that claim (2) was untimely raised.
Abuse of Process
EEOC Regulations provide for dismissal of complaints that are part of a "clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination." 29 C.F.R. � 107(a)(9). The criteria required to justify dismissal for abuse of process, as set forth in Commission decisions, must be applied strictly. Id. These criteria require: (i) Evidence of multiple complaint filings; and (ii) Claims that are similar or identical, lack specificity or involve matters previously resolved; or (iii) Evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative processes or overburdening the EEO complaint system.
On rare occasions, the Commission has applied abuse of process standards to particular complaints. Occasions in which application of the standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights whenever possible. See generally Love v. Pullman. Inc., 404 U.S. 522 (1972); Wrenn v. Equal Emp't. Opportunity Commission'n., EEOC Appeal No. 01932105 (Aug. 19, 1993); see Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999) (filing hundreds of EEO complaints, including scores of duplicate complaints "evidenced an intent to ""clog' the EEO system" and warranted dismissal for abuse of process.) Compare Complainant v. Dep't. of the Navy, EEOC Appeal No. 0120152545 (Jan. 19, 2016) (filing a complaint regarding her performance rating "nearly every year since 2007", along with 17 complaints over the last twelve years, did not justify cutting off her access to the EEO process).
In this case, the Agency dismissed claims (2) and (3) by merely citing 29 C.F.R. 1614.107(a)(9)(ii) without explanation. We find that the Agency's dismissal is plainly inappropriate. However, we determine that these claim were more properly analyzed as dismissals pursuant to 29 C.F.R. � 1614.107(a)(4) as noted above.
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 final decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
October 7, 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 We take administrative notice that the witness did raise his claim of retaliation with the MSPB in his own appeal regarding his termination.
3 The Commission notes that on appeal, Complainant alleged concerns regarding the implementation of the MSPB's decision by the Agency. Again, we remind Complainant that the proper venue for such claims of non-compliance is the MSPB, not the EEOC.
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0120161815
2
0120161815, 0120161816,
0120161817, & 0120161818