[Redacted], Gregg B, 1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2020005409 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregg B,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020005409 Agency No. HS-ICE-01773-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 11, 2020, 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. BACKGROUND Complainant is a former employee of the Agency.2 On June 25, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on religion (Muslim) and in reprisal for prior protected EEO activity (alleging discrimination in a Merits Systems Protection Board (MSPB) case). On September 11, 2020, the Agency issued a final decision. The Agency determined that Complainant’s complaint was comprised of the following claims: 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 The record reflects that Complainant was a Law Enforcement Specialist with the Agency and removed from employment effective July 27, 2014. 2020005409 2 1. On unspecified dates, [the Agency] neither communicated with Complainant regarding a Merits Systems Protection Board (MSPB) settlement, nor complied with the settlement agreement to reinstate Complainant to El Paso, Texas and abandoned him in Texas airports. 2. On unspecified dates, [the Agency] has snooped on Complainant and hacked his emails and other communications. 3. On an unspecified date, [the Agency] shredded Complainant’s original Muslim birth certificate. 4. On unspecified dates, [the Agency] violated the constitutional and civil rights of Muslim families. The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that claims (1)-(3) were previously decided by the Commission. The Agency reasoned that Complainant previously filed an MSPB appeal regarding his removal, which the MSPB sustained. The Agency further stated that Complainant appealed the MSPB AJ’s decision to the Commission’s Office of Federal Operations (OFO) and “’included in his appeal to the EEOC OFO the same contentions…he asserted in the formal complaint at issue, including the [Agency’s] failure to reemploy and reinstate him, hacking his communications and failing to return his Muslim birth certificate. [OFO] issued their decision…concluding that the [Agency] articulated a legitimate, nondiscriminatory reason for terminating Complainant’s employment …and Complainant failed to establish that [the Agency] discriminated against him based on religious discrimination or reprisal.” The Agency also dismissed claim (4), the Agency violating the constitutional rights and civil rights of Muslim families, for failure to state a claim. The Agency reasoned that these matters were generalized grievances and were outside Complainant’s employment relationship with the Agency. Complainant filed the instant appeal. We note that Complainant submitted a document regarding his appeal via the EEOC Public Portal. However, OFO was unable to get access to this document and followed up with Complainant. Complainant responded he was not able to upload another version of the document. OFO responded via email dated December 8, 2020, that because it was unable to open the document, it would not be considered. In response, the Agency request that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates its rationale set forth in its final decision. In addition, the Agency asserts that Complainant’s complaint could also be dismissed for untimely EEO Counselor contact. 2020005409 3 ANALYSIS AND FINDINGS The Agency properly dismissed claims (1)-(3) for stating the same claim previously decided by the OFO. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Complainant previously filed an appeal with the MSPB regarding his removal from Agency employment. In MSPB Docket No. PH-0752-13-5332-I-2 (April 30, 2015), an MSPB Administrative Judge (AJ) affirmed the Agency’s removal of Complainant and found that Complainant failed to prove his affirmative defense of religious discrimination. Complainant filed a petition with OFO regarding this matter and OFO concurred with MSPB’s finding of no discrimination. EEOC Petition No. 0320160060 (Oct. 13, 2016). Thus, we find that the matters regarding Complainant’s reinstatement were previously before OFO. In addition, Complainant, in EEOC Petition 0320160060, raised issues set forth in claims (1)-(3) of the instant EEO complaint, i.e. the Agency not returning his Muslim birth certificate, the Agency snooping on his communications etc. Based on the foregoing, we find that the Agency properly dismissed claims (1)-(3).3 We further find that the Agency properly dismissed claim (4), the Agency violating the civil and constitutional rights of Muslim families, for failure to state a claim. The Commission finds that claim (4) is a generalized grievance and, therefore, fails to state a claim. Complainant failed to identify a specific harm that he sustained. Complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups, unless he further alleges some specific injury to him as a result of the alleged discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Dep’t of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997) (claim that nurse practitioners in one unit received more favorable treatment than nurse practitioners in other units was a generalized grievance); Rodriguez v. Dep’t of the Treasury, EEOC Appeal No. 01970736 (Aug. 28, 1997) (claim that there was an imbalance in favoring of African-Americans, against Hispanics, in development and promotion opportunities was a generalized grievance purportedly shared by all Hispanic co-workers and therefore failed to state a claim). Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.4 3 Regarding Complainant’s claims involving the Agency’s failure to comply with an MSPB settlement agreement, we find that these matters are a collateral attack on the EEOC process. The proper forum for Complainant to raise these matters is with the MSPB, not the EEOC. We note that the Agency, in its response brief, asserts that it never entered into a settlement agreement with Complainant. 4 Because we affirm its final decision for the reasons set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2020005409 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 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, 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). 2020005409 5 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 December 10, 2020 Date