[Redacted], Luciano B., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2021002759 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luciano B.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021002759 Agency No. 6W0B17007L21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning the dismissal of his complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker, WG-03, at the Agency’s 10th Force Support Squadron (FSS), United States Air Force Academy, Colorado. On May 15, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when: 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. 2021002759 2 1. An agency official failed to reasonably accommodate Complainant and place him in a job commensurate with his prior WG-08, Step 5 retained pay and grade. 2. Agency officials failed to address Complainant’s inappropriate pay. After the Agency completed its EEO investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held an initial case conference by telephone on March 31, 2020, during which Complainant agreed to withdraw claim 2. The AJ subsequently issued a decision without a hearing, dismissing claim 1 on several grounds. Noting that claim 1 concerned the Agency’s obligation to provide a position for Complainant as part of the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) process, the AJ dismissed the claim under 29 C.F.R. § 1614.107(a)(1) as a collateral attack on an OWCP decision. In addition, the AJ dismissed the claim for not complying with the time limits delineated under 29 C.F.R. § 1614.107(a)(2). Finally, the AJ dismissed the claim because it was a reduction-in-grade claim that would have been appealable to the Merit System Protection Board if it was filed timely. The Agency issued its final order on January 5, 2021, adopting the AJ’s dismissal decision. On appeal, Complainant argues the AJ erred in “not allowing the Complainant a hearing to examine and cross examine witnesses regarding credibility which is necessary for due process to result in justice.” Complainant also argues that the AJ erred by dismissing claim 1 as a collateral attack and untimely. ANALYSIS AND FINDINGS In his appeal, Complainant argues the AJ erred by dismissing claim 1 as a collateral attack on a decision by the OWCP. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as a grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 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. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). In the instant case, claim 1 concerns the Agency’s obligation to provide a position for Complainant as part of the Department of Labor’s Office OWCP process. As part of his relief, Complainant requests that we “correct [his] grade and step with OWCP and should OWCP not correct [his] back pay” the Agency “shall pay.” This would require the Commission to determine what worker’s compensation benefits Complainant would likely have received and falls squarely under OWCP jurisdiction. Thus, the proper forum for Complainant to have raised his concerns is with the OWCP. See e.g., Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC Appeal No. 0120100241 (Oct. 5, 2010). 2021002759 3 Attempting to raise it here is an inappropriate use of the EEO process to lodge a collateral attack on the OWCP process. See Smart v. U.S. Postal Service, EEOC Appeal No. 0120054627 (Nov. 19, 2007) (the Commission found that the complainant's claim that she was not being paid properly for COP was an impermissible collateral attack on the Department of Labor); Smith v. U.S. Postal Service, EEOC Appeal No. 0120080070 (March 20, 2009) (the Commission affirmed the agency's dismissal of Complainant's claim that the agency refused to process his leave buy back as a collateral attack on the OWCP process). As such, we find the complaint was properly dismissed for failure to state a claim because it raises a matter that is outside the jurisdiction of the EEO complaint process. As mentioned, the AJ also dismissed Complainant’s claim for not following timelines delineated in 29 C.F.R. § 1614.107(a)(2), and because it was a reduction-in-grade claim that would have been appealable to the Merit System Protection Board if it was filed timely. Because we find that the claim should be dismissed for other reasons, we do not need to consider alternative grounds for dismissal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2021002759 4 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, a 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). 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. 2021002759 5 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 July 15, 2021 Date