Collateral Attacks: Cooler Sounding Than They Actually Are

By Deryn Sumner, November 20, 2017

Collateral attack.  Sounds pretty cool on its face, like a move you’d use to take down your opponent in a street fighting video game.  In reality, it’s just a basis for an agency to dismiss a formal EEO complaint because the complainant is attempting to use the EEO process to go after an entity outside of the jurisdiction of what’s covered by Title VII and the accompanying other civil rights statutes.

Okay, so not as cool as it sounds.  But what are examples of collateral attacks?  Well, as the EEOC recently, and precisely, stated, “[a] claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the unemployment compensation process, or the workers’ compensation process.”  Katherina A. v. United States Postal Service, EEOC Appeal No. 0120172007 (September 22, 2017).  In Katherina A., the complainant was trying to assert that her supervisors discriminated against her when they allegedly submitted inaccurate information to the Department of Labor regarding a workers’ compensation claim that the complainant filed.  The agency dismissed it as a collateral attack and the Commission agreed, noting its prior precedent that claims related to the merits of a workers’ compensation claim cannot be brought before the EEOC.

But there are more types of collateral attacks than just those involving grievances, unemployment claims, or OWCP claims.  Collateral attacks can also take the form of claims involving application and approval for disability retirement.  For example, in Jae S. v. United States Postal Service, EEOC No. 0120171832 (July 14, 2017), the Commission affirmed a dismissal of a claim of race, sex, disability, and reprisal discrimination where the complainant alleged that management improperly stated he had performance and ethics issues in responding to OPM regarding his application for disability retirement.  The Commission agreed that it was inappropriate for the complainant to use the EEO process to collaterally attack something that took place before OPM.

An agency can also dismiss claims on the basis that they constitute a collateral attack on entitlement to FMLA.  For example, in Edmund L. v. United States Postal Service, EEOC Appeal No. 0120171050 (September 14, 2017), the Commission agreed with the agency that an allegation that the agency discriminated against the complainant when management failed to follow FMLA regulations was under Department of Labor’s jurisdiction.  The Commission affirmed the dismissal of that claim as a collateral attack and outside of the EEO process.

Finally, collateral attacks can also be used as a basis to dismiss claims involving internal agency investigations, such as in Nerissa S. v. Department of Army, EEOC Appeal No. 0120171616 (September 20, 2017). There, the complainant alleged that agency management officials interviewed during a criminal investigative division (CID) investigation, “intentionally provided false, misleading, and incomplete information to the CID investigator, and advocated bringing a False Claims Act lawsuit against her.” The Commission agreed that this constituted a collateral attack on the CID investigation and affirmed dismissal of the claim.

While collateral attacks may not be as cool in reality as they sound, they are a useful tool for agencies to ensure that claims raised in EEO complaints are properly within the EEOC’s jurisdiction.  [email protected]