Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120142347 Agency No. HS-TSA-00038-2014 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 5, 2014, dismissing a formal 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Agency Transportation Security Officer (TSO) at the Los Angeles International Airport, Los Angeles, California. After contacting an EEO Counselor on October 8, 2013, Complainant filed a formal complaint on January 19, 2013, claiming that the Agency subjected him to discrimination on the bases of race, sex, color, age, and in reprisal for prior protected activity when: on August 11, 2013, he was issued a decision on his first step grievance to his 2012 Performance Accountability and Standards System (PASS) by the Federal Security Director (FSD). In an attachment to the formal complaint, Complainant identified the alleged discriminatory action in greater detail, as follows: Denial of a prior approved Agency Grievance over six months later by the FSD [Federal Security Director] who is NOT the 1st step official in the manner and retaliation by the FSD for Complainant providing himself as a comparative for another officer in another grievance and participating in a separate EEO Complaint. Loss of collateral duty points from the 2012 PASS scores due to the reversal of an approved grievance . . . Loss of bonus money due to loss of collateral duty points from the 2012 PASS scores due to reversal of an approved grievance granting such scores, failure to provide correct scoring on 2012 PASS. On May 5, 2014, the Agency issued a final decision. The Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §1614.103; §1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). A fair reading of the formal complaint, as described by Complainant in abundant detail, reflects that Complainant is raising a claim directly relating to the Agency's compliance with a grievance decision. We have long held that raising a collateral attack in an EEO complaint on an adjudicatory decision made in another administrative proceeding fails to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). Complainant should raise his concerns in the grievance process itself, and not through the EEO process. CONCLUSION Accordingly, the Commission finds that the Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. Because we affirm the dismissal for the reason stated herein, we will not address alternative dismissal grounds. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations November 5, 2014 __________________ Date 2 0120142347 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142347