Michael D.,1 Complainant,v.Kevin K. McAleenan, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

2019003271 (E.E.O.C. Sep. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michael D.,1
Complainant,

v.

Kevin K. McAleenan,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 2019003271

Agency No. HS-CBP-02553-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated March 6, 2019, 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 for the Agency as a Special Operations
Supervisor, GS-1896-13 in Zapata Station, Texas.

On October 29, 2018, Complainant filed a formal complaint. Complainant claimed that the
Agency subjected him to unlawful retaliation when:

1. on or about August 13, 2018, Complainant learned he was not selected or considered for
the position of Acting Deputy Patrol Agent-In-Charge, solicited via email to Agency
employees; and

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.
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2. on or about August 23, 2018, Complainant’s Division Chief refused to honor
Complainant’s request to see his personnel unless he first spoke personally to the Chief.

On March 6, 2019, the Agency issued a final decision. The Agency dismissed the instant formal
complaint for failure to state a claim pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(1),
finding that the sole basis raised in the formal complaint – Complainant’s “whistleblower”
activities – were not protected activity within the meaning of the anti-discrimination statutes.

This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint which
fails to state a claim within the meaning of C.F.R. § 1614.103. 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).

Here, the Agency dismissed the complaint because Complainant’s sole claim was that he was
being retaliated against for engaging in whistleblower activities. The Commission has previously
held that whistleblower activities are generally outside the purview of the EEO complaint
process. See Giannu v. Department of Housing and Urban Development, EEOC Request No.
05880911 (February 13, 1989). There is no indication in the record that Complainant’s alleged
whistleblower activity involved any allegations of employment discrimination or were designed
to oppose discrimination. As reprisal for whistleblower activities was the sole basis raised by
Complainant, we determine that the Agency's dismissal for failure to state a claim was proper.

The Agency's final decision dismissing Complainant's formal complaint for failure to state a
claim is AFFIRMED for the reasons discussed above.

CONCLUSION

The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons set
forth herein.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

September 6, 2019
Date