0120151817
01-21-2016
Mario K.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mario K.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120151817
Agency No. HS-ICE-01371-2014
DECISION
On April 23, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 26, 2015, dismissing her 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
At time of events giving rise to this Complaint, Complainant worked as an Immigration and Enforcement Agent, GS-9, with the Agency's Enforcement and Removal Operations, Port Isabel Detention Center, in Los Fresnos, Texas.
According to a July 2011, Agency Office of Inspector General (OIG) report, in November 2009, OIG and the Office of Professional Responsibility (OPR)2 received information from the Federal Bureau of Investigation (FBI) regarding Complainant's alleged association with narcotics traffickers and potential acceptance of bribes from several sources of information. OIG immediately commenced an investigation with the support of OPR under the auspices of the Public Corruption Task Force led by a United States Attorney's Office.3 According to the report, the above allegation stemmed from an FBI confidential informant (CI). In the report, OPR wrote that several sources of information stated Complainant offered narcotic smuggling organizations based out of Mexico protection from law enforcement for vehicles used to transport narcotics in Texas, and that his father was previously a member of a narcotic smuggling organization in Mexico and was still in contact with it. The CI also contended that Complainant called the CI to discuss meeting in person to make arrangements for Complainant to assist with smuggling narcotics, saying he was desperate for cash. Despite several attempts by the CI under the auspices of the Agency to arrange a meeting, Complainant declined to meet, and the CI reported receiving a message through a mutual friend that Complainant did not want to facilitate smuggling.
In the report, OIG wrote that the CI obtained photographs of Complainant at a party wearing his official government uniform. OPR and OIG received the photographs, and they were described in the report as Complainant holding a container of alcoholic beverage, in another posing with a second person wearing Complainant's badge and holding his service issued gun, and in a third Complainant pointing his service issued gun at someone's chin (as a joke). It was alleged that Complainant was on a cocaine snorting binge when he pointed his gun.
In June 2011, Complainant submitted a statement for the OIG investigation. He stated that he went to the above party in uniform, had a few beers with friends, and posed for some photographs, one where he pointed his unloaded service gun at a friend. Complainant wrote that a couple of months later, one of his sister's friends said he could pay him (Complainant) if he (Complainant) helped the friend move narcotics as a new business. Complainant wrote that he did not take this seriously, and jokingly replied to his sister's friend that if were that easy to make money moving narcotics he would do it himself. According to the report, Complainant said he did not report this matter as a bribe attempt because he did not believe it was serious.
In April 2012, the Agency proposed Complainant's removal. Based on information in the OIG report, the Agency charged Complainant with (1) possession of a firearm while or after consuming alcohol, (2) inappropriate display or brandishment of a firearm or weapon, (3) inappropriate storage or care of a firearm or weapon, (4) using government identification including badges for other than official purposes, (5) conduct unbecoming a law officer, and (6) failing to report a bribe or attempted bribe.
In its June 2012 decision on the proposal, the Agency sustained charges 1 - 5, but not charge 6, and reduced the proposed removal to a 30 day suspension without pay.
In July 2012, Complainant appealed the suspension to the Merit Systems Protection Board (MSPB). In the appeal form, he checked off a box indicating he was raising discrimination based on an EEO protected basis or bases. In September 2012, Complainant withdrew his appeal.
On April 15, 2013, Complainant filed civil action complaint 1:13-cv-00063 in the United States District Court for the Southern District of Texas, which he amended on January 8, 2014.4 Therein, Complainant named the Secretary of the Department of Homeland Security and several other Agency officials as defendants.5 The subject of the civil action was the OIG report (and OPR writings therein). In August 2014, a District Court Magistrate Judge issued a Report and Recommendation to dismiss the civil action. The Magistrate Judge found that Complainant brought five causes of action: (1) the statements concerning drug smuggling and the cocaine binge constituted slander per se, (2) the allegedly slanderous statements violated his Fifth Amendment right to due process, (3) the allegedly slanderous statements constituted profiling based on race and ethnicity in violation of his First Amendment right to association, (4) the allegedly slanderous statements caused him to be administratively prosecuted in violation of federal statutes, and (5) the defendants engaged in prohibited personnel practices."6 The Magistrate found Complainant's causes of action were legally and factually meritless. Shortly thereafter, a United States District Court Judge issued an Order adopting the Magistrate's Report and Recommendation.
Thereafter, in October 2014, the Agency proposed Complainant's removal, and did so again on in March 2015. In both proposals, the Agency charged Complainant with failing to cooperate during an official investigation. In the first proposal, the Agency detailed OPR investigative interviews of Complainant which occurred on May 14, 2014 and June 16, 2014, regarding the accidental discharge of a personally owned weapon. In the second proposal, the Agency detailed an OPR interview of Complainant which occurred on June 18, 2014, regarding in part or whole (a) his allegedly being arrested in Mexico with assault weapons, (b) his involvement in selling a vehicle for his sister's male friend, and (c) his sister's engagement to someone who may be associated with a Mexican drug cartel. In the proposal, the Agency noted Complainant admitted to traveling to Mexico for a wedding where many others, including his sister and fianc�, were also there.
In its June 2015 decision on the proposals, the Agency did not sustain the charge in the first proposal, and closed it out. The Agency sustained the charge in the second proposal, and decided to remove Complainant effective June 17, 2015.
In July 2015, Complainant appealed his removal to the MSPB, and alleged national origin discrimination (Mexican-American), and reprisal for prior EEO activity. The appeal is still pending.
Meanwhile, on September 5, 2014, Complainant filed an EEO complaint alleging that he was discriminated against based on his national origin (himself - Mexican-American, and by association - his father, a Mexican citizen with legal permanent residency in the United States)7 and reprisal for prior EEO activity when:
1. From 2010 to the present, he and his family were under constant surveillance by OPR, with numerous investigations or open cases without any basis to include surveillance of him, his sister, brother-in-law, cousins, and father and mother;
2. On or about May 12, 2014, he was summoned to appear for an OPR interview on May 14, 2014;
3. At the OPR interview on May 14, 2014, which regarded his accidental weapon discharge, he said he would recount the details once he received a copy of the police report;
4. On or about May 28, 2014, he was suspended from handling and/or processing National Security Classified Information, in accordance with Executive Order 12968;
5. On June 12, 2014, he was mandated to appear on June 16, 2014 for an OPR investigative interview regarding his 2001 detention in Mexico;
6. On June 16, 2014, he appeared for the OPR interview regarding his weapon's discharge and detention in 2001 while he was in Mexico;
7. On June 18, 2014, he appeared for another OPR investigative interview in reference to his detention in Mexico in 2001 when he was 18 years old;
8. On June 23, 2014, he appeared for an investigative interview with Department of Homeland Security criminal investigators regarding his receiving compensation for providing legal advice to relatives; and
9. Due to OPR profiling and discriminating against him, he almost lost his job. In the OPR/[OIG] report, it was alleged that he and his father are directly involved with the Gulf Cartel based out of Mexico and he had a cocaine snorting binge. Both the OPR and OIG reports single him out and profile him because he is Mexican-American and his father worked for the Mexican government's customs department.
In its FAD, the Agency dismissed the complaint on the grounds that Complainant filed civil action 1:13-cv-00063 on the same matter - the continuous OPR investigation of him and his family.
On appeal, Complainant argues that the causes of action in his civil action complaint were not the same as his administrative EEO complaint where he alleged employment discrimination.
In opposition to the appeal, the Agency submits the proposed removals, the decisions to suspend and remove, the MSPB appeals and documentation of Complainant withdrawing the MSPB suspension appeal, and the District Court's Magistrate Judge and Report and Recommendation and its adoption by the District Court Judge.
On appeal, the Agency clarifies that issues 1 and 9 should be dismissed for having been raised in a civil action where they were adjudicated under the doctrines of res judicata and issue preclusion (collateral estoppel). It clarifies that issues 1 through 9 should be dismissed for failure to state a claim because they constitute a collateral attack on the OPR/[OIG] investigative process. The Agency further clarifies that issues 1 and 9 should be dismissed because they were connected to his mixed case suspension appeal to the MSPB, which was withdrawn, and issues 2 through 7 are connected to Complainant's mixed case appeal to the MSPB concerning his removal, and hence are now under the jurisdiction of the MSPB.
ANALYSIS
Res judicata/Collateral Estoppel
Pursuant to the doctrine of res judicata, an individual may not re-litigate a claim or issue in the EEO administrative process that has been decided by a prior federal court decision. This includes claims that were raised or could have been raised in federal court. EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-VI (May 12, 2000).
A claim raised in the EEO administrative process will not be precluded by an earlier civil action proceeding where the civil action proceeding ended before the required waiting period to bring the same matter has not expired - e.g., in the private sector, unless the Commission completes its processing of a charge prior to the expiration of 180 days, a Title VII claimant generally may not file a civil action until 180 days after filing the charge. Therefore, if the court issued a decision before the waiting period expired or the charging party was otherwise unable to amend the action in a timely manner to include the claim raised in the EEOC charge, then the court proceeding would not preclude the claim raised in the EEOC charge. Id.
In Complainant's administrative EEO complaint, only the portion of issue 1 involving the OIG/OPR investigation which was finalized in July 2011, and issue 9, cover the same events litigated in the civil action. Complainant filed his EEO complaint alleging that the above OIG/OPR investigation and report were discriminatory on September 5, 2014. The Court issued its decision dismissing the civil action (with prejudice) on September 17, 2014. The Court issued its decision long before the required waiting period expired to file a civil action. 29 C.F.R. � 1614.407. Complainant did not allege employment discrimination in the civil action, nor did the Court rule thereon. Accordingly, we find that issue 1 and issue 9 are not barred by res judicata or collateral estoppel.
Failure to State a Claim
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills 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 raise her challenges to actions related to a potential criminal proceeding, of which an OIG/OPR investigations were a part, is generally within that proceeding itself. Hence, we find that complaint's claim of harassment as to the OIG/OPR investigations does not state a claim. We note that agencies have an obligation to investigate allegations of employee misconduct to guard the integrity of its workforce, regardless of the apparent merit of the initial allegation. Powers v. Department of Veterans Affairs, EEOC Appeal No. 01940174 (July 15, 1994) (applying the doctrine of collateral attack to the allegation that the agency's investigation of a patient's allegations against her resulted in a continuation of another patient's alleged sexual harassment against her).
Accordingly, issues 1 through 3, and 5 through 9 are dismissed for failure to state a claim. For this reason, we need not address the argument that these issues should be dismissed because of the suspension and removal appeals to the MSPB.
Issue 4
In issue 4, Complainant alleged that he was suspended from handling and/or processing National Security Classified Information, in accordance with Executive Order 12968 (which regards access to classified information).
The doctrine of collateral attack as outlined above does not apply here, nor was the matter raised before the MSPB. But by the explicit wording of this allegation (only involving the suspension in accordance with Executive Order 12968), the affirmative defense that the Commission does not have jurisdiction to review an Agency's determination with regard to the substance of a security clearance decision has been raised by the Agency. See Policy Guidance on the Use of the National Security Exception Contained in � 703 (g) of the Civil Rights Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989). The Commission is precluded from reviewing the substance of the security clearance decision. Id. Accordingly, issue 4 is dismissed.
The FAD is AFFIRMED, for the reasons found herein.
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), 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
January 21, 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 In its opposition brief, the Agency explains that OPR is the official investigative unit for administrative and criminal misconduct, and is also a responsible for background investigations and issuing security clearances.
3 In his EEO complaint, Complainant alleged that this [OIG]/OPR investigation and report were discriminatory. While the OIG/OPR report was not in the record, Complainant submitted it with an amended civil action he filed in the United States District Court for the Southern District of Texas, which is public record.
4 The Court accepted the amended complaint, ruled it was the operative complaint in the case, and it superseded the original complaint and rendered it as having no legal effect. See Court docket, Docket No. 47.
5 The Court found that because Complainant did not state whether he was suing the Defendants in their individual or official capacities, it would assume he was suing them in both capacities.
6 The Magistrate Judge found "administratively prosecuted" meant a criminal proceeding, and there was none. It found that because Complainant did not plead any facts identifying what prohibited personnel practices occurred, this claim was conclusory, unsupported, and meritless.
7 Complainant identified this basis as parental status, but it is actually an association basis.
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