Whitney G.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171956 (E.E.O.C. Nov. 20, 2018)

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

Whitney G.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171956

Agency No. HS-TSA-23904-2015

DECISION

On May 15, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 20, 2017,
concerning his complaint of unlawful employment discrimination in violation of 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 was employed by the Agency as
an Assistant Special Agent in Charge (Supervisory Federal Air Marshal), 1801-K Band, with the
Federal Air Marshal Service, Orlando Field Office in Orlando, Florida.

On July 15, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency subjected him to discrimination and a hostile work environment based on
disability (medial meniscus – right knee, and bilateral Achilles tendonitis), age (49) and reprisal
for prior EEO activity under the Rehabilitation Act and the ADEA when in March 2015 and
thereafter,2 management provided errant and misleading information to the Department of Labor,

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 Agency defined the discrimination as occurring in March 2015. Complainant alleged
instances of the Agency challenging his worker’s compensation claim in March, April and May
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Office of Workers’ Compensation Programs (OWCP), challenging his worker’s compensation
claim, resulting in OWCP denying the claim.3

Following an investigation, the Agency gave Complainant election rights to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge or a final Agency
decision without a hearing. After Complainant did not reply, the Agency issued a FAD finding no
discrimination. The instant appeal followed.

Complainant argues that the FAD did not address all OWCP’s letters questioning his claim and
soliciting more information because of the Senior Human Resources Specialist (HR Specialist)
and his assistant challenged his claim. He disagrees with the Agency’s finding of no
discrimination, referencing contentions he previously made. Complainant contended that after he
completed his Employee’s Notice of Traumatic Injury OWCP CA-1 form on March 12, 2015, the
HR Specialist’s assistant typed in a field reserved for supervisors that the cause of injury lacked a
traumatic event, and that OWCP should consider treating the claim as CA-2 (Notice of
Occupational Injury). Complainant contended that his injury was traumatic, and while in the above
field the assistant identified his position title, he misleadingly used the supervisory field.
Complainant further contended that on April 30, 2015, the HR Specialist submitted a letter to
OWCP challenging his claim, i.e., contending the mere manifestation of a condition during a
period of employment does not raise an inference of a causal relationship between the condition
and the employment, and interpreting his medical condition using an online medical dictionary.
Complainant contended that the HR Specialist violated procedures by interpreting his medical
condition to OWCP. This referred to an email by the Agency Section Chief, Medical Programs
that the HR Specialist is not a physician, has no medical training, was not qualified to opine on
Complainant’s medical issues, doing so exposed the Agency to unnecessary liability, and in the
future, if he wants to comment on medical information, he should go through Medical Programs,
not use WebMD. Complainant wrote that on May 26, 2015, the HR Specialist submitted a revised
challenge letter to OWCP, reiterating that he did not show a causal relationship between his injury
and his employment, minus his previous medical interpretation, which did not undo the damage.

In opposition to the appeal, citing numerous Commission cases, the Agency argues that

2015. The Agency dismissed Complainant’s reprisal basis, finding it was not based on protected
EEO activity. Complainant contended that a Senior Human Resources Specialist (HR Specialist),
who formerly was his subordinate, retaliated against him by challenging his worker’s
compensation claim because Complainant did not support his promotion in the past. But in his
investigatory affidavit, Complainant also wrote that he filed his EEO complaint in May 2015 (a
reference to initiating EEO counseling on May 8, 2015), and in the same sentence, that on May
26, 2015, the HR Specialist submitted a revised challenge to his OWCP claim. Report of
Investigation (ROI), at 120. While we disagree with the Agency’s dismissal of Complainant’s
reprisal basis, we take no action for reasons later given herein.

3 On July 14, 2015, OWCP accepted Complainant’s claim, overturning its May 29, 2015 initial
denial.
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Complainant’s complaint fails to state a claim because it is a collateral attack on another
proceeding – OWCP (whose function is to adjudicate injury compensation claims). The Agency
also argues that Complainant did not prove discrimination. In his report, the EEO counselor
identified the HR Specialist’s organizational role as the Agency’s “OWCP” Manager, and his
assistant’s organizational role as the Agency Assistant “OWCP” Manager.

ANALYSIS AND FINDINGS

The Commission has held, in numerous decisions, that an employee generally may not use the
EEOC complaint process to lodge a collateral attack on another proceeding, and that claims
alleging dissatisfaction with the OWCP process should be raised with the Department of Labor,
not the EEOC. See e.g., Janel B. v. U.S. Postal Serv., EEOC Appeal No. 0120151232 (April 25,
2017). This even applies where a complainant alleges that agency officials discriminatorily altered
a completed CA-1 form, conspiring to have the complainant’s worker’s compensation claim
denied. Cooper v. Dep’t. of the Army, EEOC Appeal No. 0120122536 (Oct. 10, 2012).

Applying the above, we agree with the Agency’s argument that Complainant’s complaint fails to
state a claim, and we dismiss it for this reason.

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.
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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.
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.

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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

November 20, 2018
Date