U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman P,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Information Systems Agency (DISA)), Agency. Appeal No. 0120181744 Agency No. DOD-DISA-18-007 DECISION On May 1, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 20, 2018, 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., 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 a Multimedia Specialist, GS-1001-12 at Headquarters, DISA, DBC/BD/BDC, Visual Information Services Branch in Fort Meade, Maryland. Complainant filed an equal employment opportunity (EEO) complaint dated March 12, 2018, alleging that he was subjected to discrimination and harassment based on his race (African American/Black), sex (male), disability, age (64), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On August 14, 2017, the Visual Information Chief, the Director of DISA, and Inspector General (IG) Inspectors 1 and 2 maliciously started an investigation against him; 2. As part of this investigation, on August 22, 2017, IG sized his computer, and as of the date of the complaint it has not been returned;2 and 3. In February 2018, his informal EEO case on issues 1 and 2 was improperly and prematurely closed without his being provided a notice of right to file a discrimination complaint.3 The Agency dismissed Complainant's entire complaint for failure to cooperate because after initiating EEO counseling, he refused to meet with the assigned EEO counselor for an initial interview. 29 C.F.R. § 1614.107(a)(7). Citing 29 C.F.R. § 1614.107(a)(2), which regards time limits, the Agency also dismissed the entire complaint for not being counseled. Complainant initiated EEO counseling on January 23, 2018. Regarding the latter reason, the Agency found that sometime after Complainant's refusal, the EEO office closed his request for counseling (the Agency informed him of the closure when it occurred on February 22, 2018, and advised that if he still wanted to enter the informal process, a new request is required, and a new EEO counselor may be assigned). Additionally, the Agency dismissed issues 1 and 2 for failure to state a claim because they constituted a collateral attack on another proceeding, and dismissed issue 3 for alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. Complainant controverts all the Agency's reasons for dismissing his complaint. In opposition to the appeal, the Agency supports the FAD and raises additional grounds for dismissal, which Complainant controverts in a sur-reply, and the Agency supports in its sur-reply. We exercise our discretion to consider the sur-replies. ANALYSIS AND FINDINGS 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. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). Here, it appears that issues 1 and 2 directly relate to a potential criminal proceeding, of which the IG investigation is a part. Complainant needs to raise any claims related to that potential criminal proceeding within the proceeding itself. Accordingly, we affirm the Agency's dismissal of issues 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(1). EEOC Regulation 29 C.F.R. § 1614.107(a)(8) requires that prior to a request for a hearing in a case, the Agency shall dismiss an allegation that alleges dissatisfaction with the processing of a previously filed complaint. Applying this regulation, we find that the Agency properly dismissed issue 3.4 The FAD is AFFIRMED. 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. 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 July 31, 2018 __________________ Date 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 Complainant was provided an evidence/property receipt for his computer which indicated it was taken as evidence for an investigation by or under the authority of the US Army Criminal Investigation Command. 3 In its FAD, the Agency found that Complainant's complaint contained these three incidents, but in opposition to his appeal argues the complaint does not contain incidents 1 and 2. We find that the FAD was correct. In his complaint, Complainant specifically alleged incident 3 and generally alleged harassment, reprisal, and discriminatory practices were perpetrated by Visual Information Chief, the Director of DISA, and Inspectors 1 and 2. We find that this fairly can be read as referring to his intake questionnaire where he identified these four people by name and specifically alleged they perpetrated incidents 1 and 2. 4 As we have affirmed the dismissal of issues 1, 2 and 3 for the reasons above, we need not address the remaining reasons for dismissal, including the additional ones raised on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181744 4 0120181744