U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001711 Hearing No. 470-2017-00306X Agency No. HS-TSA-25578-2016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 12, 2021, dismissing 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., 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 Transportation Security Officer at the Agency’s Hilo International Airport in Hilo, Hawaii. On March 4, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On December 11, 2015, management denied Complainant’s request to return to work on a limited duty basis. 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. 2021001711 2 2. In January 2016, Complainant became aware that a management official attempted to have his Department of Labor (DOL) workers’ compensation case closed after the management official informed a DOL case worker that Complainant’s injury was not genuine. 3. On January 11, 2015, Complainant became aware that the DOL approved his change of doctor while a management official falsely informed him about the status of his DOL case. 4. On January 25, 2016, a management official falsely informed Complainant that a DOL case worker needed additional information in order for management to approve Complainant’s return to work on a limited duty status. The Agency accepted the complaint and conducted an investigation. Thereafter, Complainant requested a hearing. However, on December 2, 2020, an EEOC Administrative Judge (AJ) granted the Agency’s motion to dismiss the complaint as a collateral attack on the Office of Workers’ Compensation Programs (OWCP) adjudicatory process. The AJ found that the entire complaint stemmed from Complainant’s OWCP claim arising from an alleged March 2015 knee injury. The Agency provided Complainant with limited duty assignments, and in August 2015, the treating physician cleared Complainant for return to full-duty. However, in December 2015, Complainant requested a return to limited duty due to a recurrence of the injury, with supporting documentation from a new doctor. The Agency waited for a decision from OWCP regarding Complainant’s recurrence claim. The AJ stated that, “Complainant challenges the Agency’s decision to wait for OWCP input and to controvert his recurrence claim” and that to reach the merits of his discrimination claim he would have to independently review the merits of OWCP’s eventual decision. The AJ noted that Complainant was not raising a denial of reasonable accommodation claim. The Agency adopted the AJ’s dismissal of the complaint and the instant appeal followed. ANALYSIS AND FINDINGS 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. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory 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). 2021001711 3 The Commission has previously held that a complaint involving an agency's controverting an OWCP claim constitutes a collateral attack on the workers’ compensation adjudicatory process and fails to state a claim. See Cooper v. Dep't of the Army, EEOC Appeal No. 0120122536 (Oct. 10, 2012); Penticuff v. U.S. Postal Serv., EEOC Appeal No. 0120121931 (July 27, 2012); Pagliuso v. U.S. Postal Serv., EEOC Appeal No. 0120120974 (Apr. 30, 2012). This includes alleged false statements and information provided by Agency officials to OWCP. See Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October 23, 1998) (allegedly false statements made by agency to OWCP during OWCP's processing of a workers' compensation claim goes to the merits of compensation claim); Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received); Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (claim that agency's providing false information to the OWCP resulted in denial of benefits is a collateral attack on OWCP's decision and, thus, fails to state a claim). Based on the prior precedent discussed above, we conclude that the AJ correctly determined that claims 2 - 4 directly involved the Agency’s controverting Complainant’s OWCP claim for recurrence of his injury, and agree with the AJ that, as such, these allegations fail to state a claim that can be remedied through the EEO complaint process. Claim 1 regards the 2015 denial of Complainant’s request to return to work in a limited duty status after the OWCP-approved physician released him to return to work full-time. The investigative report shows that rather than denying the request, the Agency delayed making a decision until OWCP made a decision on Complainant’s claim of recurrence of injury and the medical documentation submitted in support of the request. The AJ concluded that this too was inextricably tied to the adjudication of Complainant’s workers’ compensation claim and so was also an impermissible collateral attack. In reaching this conclusion the AJ specifically found: [It was] worth noting that Complainant did not allege a denial of reasonable accommodation. It is undisputed the Agency repeatedly apprised Complainant of his entitlement to reasonable accommodation if such accommodation could allow him to perform his full screener duties. There is no evidence that Complainant sought such accommodation. Indeed, by virtue of his recurrent limitations, Complainant could not perform basic screener functions even with accommodation. We have independently reviewed the record, which includes a report of investigation, and agree with the AJ that Complainant did not raise a claim of denial of reasonable accommodation in violation of the Rehabilitation Act. Rather, he claimed disparate treatment because of his disability and retaliatory animus. As such, we also affirm the AJ’s dismissal of claim 1 as a collateral attack on the OWCP adjudicatory process. 2021001711 4 CONCLUSION Accordingly, the Agency's final order adopting the decision of the AJ to dismiss Complainant's complaint is AFFIRMED. 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 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. 2021001711 5 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. 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 April 14, 2021 Date