Billie S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 22, 2019

0120180652 (E.E.O.C. Aug. 22, 2019)

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

Billie S.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120180652

Hearing No. 531-2016-00176X

Agency No. DON 15-42191-01801

DECISION

On December 4, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
decision (FAD) dated December 1, 2017, concerning his equal employment opportunity (EEO)
complaint alleging 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 Contract Specialist, GS-1102-13, at the Naval Air Systems Command, Assistant Commander for
Contracts (Air 2.0), Major Weapons Systems for Air ASW Assault and Special Mission Programs
(Air - 2.3) in Patuxent River.

On July 16, 2015, Complainant filed an EEO complaint, as amended, alleging that the Agency
discriminated against him based on his race (African-American), national origin (America),
religion (Christian), color (brown), disability (back, knee, severe allergies, depression, anxiety,

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.
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sleep apnea, insomnia), age (48 & 49), and reprisal for prior protected EEO activity under Title
VII and the ADEA2 when:

1. Since February 2015, it refused to provide several requested accommodations, including
interim accommodation, or engage in the interactive process to determine appropriate
accommodations.

2. On or about March 3, 2015, his first line supervisor (S1 – Caucasian, White, Native
American heritage, Christian, around age 53) issued an unfavorable Close Out Assessment
on him, placed it or a reference to it in an unsecured folder anyone could access, and did
not give him a mid-year review.

3. He was subjected to heightened scrutiny and negative evaluations.

4. After on March 4, 2015, he reported to his third-line supervisor (S3 – Caucasian, White,
American citizen, religion – none, around age 48) that S1 mishandled his reasonable
accommodation request by exposing personally identifiable information (PII) by emailing
a request for medical information to his representative with attachments that were not
encrypted, and without appropriate markings and coversheets, and S3 took no action.

5. On or around March 24, 2015 and March 26, 2015, he was placed on Absent Without Leave
(AWOL) status.

6. On or about March 2015, he requested leave and gave supporting medical documentation
to his successor first line supervisor (Successor S1 – White, Irish and German, Catholic,
around age 52), but Successor S1 denied receipt of it, so the Agency refused to
accommodate him.

7. On or around April 2015, he submitted medical documentation in support of his request
for leave under the Family Medical Leave Act (FMLA), but his request was denied and he
was threatened with retaliatory measures could be taken due to his disability status.

Complainant further alleged that he was unlawfully retaliated for engaged in prior, protected
activity when:

8. In March or April 2016, in response to a request for information by a U.S. Department of
State investigator conducting a suitability and security clearance investigation on him for
his subsequent employment working with the Millennium Challenge Corporation (MCC -
a federal government foreign aid agency established by the U.S. Congress), the Agency
provided negative, false, and unfavorable information damaging his reputation, credibility,

2 In its FAD, the Agency indicated that Complainant did not specify most of his bases. However,
he did specify them in the narrative portion of his EEO complaint, his reasonable accommodation
requests, and in his deposition during the hearings process.
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and employability with MCC and prospective the federal government employers.3 Starting
in February 2016, Complainant worked for MCC on a personal services contract.

After completing an EEO investigation of issues 1 – 7, Complainant was given a report of
investigation (ROI). The EEO investigator gave Complainant opportunities to provide a statement
in person via a question and answer format that was transcribed, a telephone interview, or written
responses to questions, but he did not provide a statement.

Regarding issue 2, the evidence developed during the investigation shows that S1 signed off on a
Close Out Assessment of Complainant’s performance on March 3, 2015, because she was
departing the Agency on March 6, 2015. She did the Close Out Assessment in lieu of the mid-year
review, which would have been due later in March, as she did for all her approximately 25
subordinates. S1 wrote that Complainant’s productivity was insufficient to meet program
requirements, requiring others to do his work, and in her EEO investigative statement explained
that his productivity was not at the GS-13 level. In his deposition, Complainant stated that the basis
of his claim about an unsecured folder was that S1 said she put it in a folder. Complaint file, Bates
No. 535, Complainant’s deposition, at 70. S1 placed Complainant’s Close Out Assessment in an
electronic shared drive that was only accessible to him, S1, the reviewing official (S2), and a
management analyst whose job was to compile such information.

Regarding issue 3, Complainant did not specify to what he was referring, other than the Close Out
Assessment referenced above. Complaint file, Bates Nos. 546 – 547 - Complainant’s deposition,
at 114 – 117.

Regarding issue 4, a little more than 1½ hours after receiving Complainant’s March 4, 2015 report
that his PII was mishandled, S3 contacted the Naval Air Systems Command Privacy and Records
Officer. By email to Complainant later on March 4, 2015, the Privacy Officer advised that she did
not see any loss of PII information. She invited Complainant to discuss the matter further, but he
did not get back to her. She later stated that there was no breach of PII because the email only went
to those individuals who had a need to know.

Regarding issue 7, the record suggests that the threatened retaliatory measures to which
Complainant refers were the Agency advising him he was still on AWOL. Previously, he was
recently warned that AWOL could be the basis for taking disciplinary action, up to and including
removal.

When the Agency’s representative and Complainant discussed issue 8 at his hearing deposition,
such as what information Complainant could provide about his belief of any action the Agency
took in relation to his job with MCC, whether this claim was based on any basis other than reprisal,

3 In its FAD, the Agency did not capture issue 8. During the hearings process before the EEOC,
Complainant file a motion to amend his EEO complaint with issue 8, which the Administrative
Judge (AJ) granted. See Complaint file, at Bates No. 474 - transcript of January 25, 2017
conference, at 72.
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and evidence Complainant had that the Agency had any part in MCC terminating his employment,
Complainant repeatedly said those facts were currently under development, giving no information
supporting his claim of discrimination on issue 8, and there is none in the record. Complaint file,
Bates Nos. 531 – 532 - Complainant’s deposition at 54 – 55, 59 – 60.

The remaining issues will be addressed below.

On December 1, 2017, the Agency issued its final decision based on the evidence of record,
dismissing most of the issues on procedural grounds.4 Nevertheless, the Agency also addressed
the dismissed matters on the merits. On issues 1 – 7, the Agency found no discrimination. The
Agency did not address issue 8.

The instant appeal followed.

ANALYSIS AND FINDINGS

As an initial matter, Complainant argues on appeal that Agency should be sanctioned for not
providing him a copy of the hearing record, which it referred to in its opposition brief. In opposition
to Complainant’s appellate argument that it should be sanctioned, the Agency argues that it had no
duty to provide Complainant a copy of the hearing record because as a party, he already had the
documents which make up the hearing record. We agree.

In opposition to Complainant’s argument that it untimely filed its opposition brief in response to
Complainant’s appeal brief, the Agency submits a declaration by a paralegal in its legal office that
Complainant’s brief [dated January 3, 2018] was received in an un-postmarked envelope on
January 17, 2018. The paralegal attached the envelope. It has no postmark, its stamps are hand
canceled, and there is a notation thereon indicating receipt on January 17, 2018. Because we find
the paralegal’s statement persuasive, we find that the Agency timely filed its brief on February 7,
2018.

The Agency dismissed issues 2 and 4 because while he raised them with an EEO counselor, he did
not allege them in his EEO complaint, so they were deemed abandoned by the Agency. We
disagree.

4 The Agency dismissed a portion of issue 1 for failure to timely initiate EEO counseling – all of
issue 1 that occurred more than 45 calendar days before Complainant initiated EEO counseling on
April 16, 2015 (on or prior to March 1, 2015). Citing Commission caselaw, the Agency dismissed
issues 2, 4, and 5 because while he raised them with an EEO counselor, he did not allege them in
his EEO complaint, so they are deemed abandoned. The Agency also dismissed issue 4 because
various emails by Complainant showed he contended S1 violated the Privacy Act, but this Act
provides an exclusive statutory framework governing the disclosure of identifiable information
contained in federal systems of records. The Agency dismissed issue 7 because the Commission
does not have jurisdiction to enforce the FMLA and Complainant’s use of the EEO process to
prosecute issue 7 was a collateral attack on the FMLA process.
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The Agency questioned Complainant at his deposition on issues 2 and 4, and his responses
indicated he had not abandoned these claims. We need not address the Agency’s dismissal of issues
1, 5 and 7 because, as will be addressed below, we are dismissing them on another ground.

Issues 2, 3, 4 and 8

To prevail in these disparate treatment claims, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this on issues 2 and 4 because the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

On issue 2, S1 explained that she issued an unfavorable Close Out Assessment on Complainant
because it was warranted, did this in lieu of a mid-year appraisal because she was departing the
Agency, and placed the Close Out Assessment in a secured electronic drive. Complainant has not
shown these explanations are pretext or proved discrimination, and we find that issue 3 was a
reiteration of issue 2.

On issue 4, the record reflects that S3 took immediate action. The Agency’s Privacy and Records
Officer indicated S1 did not breach Complainant’s PII because the email in question only went to
those individuals who had a need to know. Complainant has not proven pretext or discrimination.

On issue 8, we find that Complainant did not make out a prima facie case of discrimination (create
an initial inference of discrimination) because there is no evidence in the record regarding issue 8.
When asked about issue 8 at his deposition, Complainant simply responded that the record was
being developed on the issue.

Issues 1, 5, 6 and 7

Under res judicata, when the judgment is rendered for the defendant, the plaintiff's claim is
extinguished and the judgment then acts as a bar. A doctrine under res judicata is collateral estoppel
or issue preclusion. It recognizes that suits addressed to particular claims may present issues
relevant to suits on other claims. Thus, issue preclusion bars the re-litigation of issues actually
adjudicated and necessary to the judgment in a prior litigation between the parties. In the
administrative process, these doctrines apply to claims which were fully litigated before the MSPB.
Syndor v. Office of Personnel Management, EEOC Appeal No. 0120101050 (June 3, 2010).

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By letter dated August 11, 2015, the Agency sustained its May 14, 2015 Notice of Proposed
Removal of Complainant for being AWOL since March 9, 2015, for 43 consecutive workdays,
and removed him effective August 17, 2015.

The Agency has argued that a portion of Complainant’s EEO complaint was barred under the res
judicate doctrine of collateral estoppel. The Agency has pointed to the MSPB’s initial decision
dated February 11, 2016, sustaining the removal and finding no discrimination, the EEOC’s
decision in Truman B. v. Department of the Navy, Petition No. 0320160037 (June 23, 2016),
concurring with the MSPB’s finding of no unlawful disability or reprisal discrimination, and
Complainant’s civil action complaint No. PX-16-2705 filed with the United States District Court
for the District of Maryland where Complainant cited to EEOC Petition No. 0320160037 and
alleged discrimination based on his disability and reprisal.

We take administrative notice that on December 7, 2018, the United States District Court found
that Complainant was not discriminated against based on disability and reprisal for protected EEO
activity when he was terminated for AWOL. The Court’s decision reflects that to support that he
was discriminated against when he was removed, Complainant raised the same matters that are in
issues 1, 5, 6 and 7. Specifically, he claimed that had the Agency granted his requests for
reasonable accommodation he made in January and February 2015, and acknowledged and acted
upon the medical documentation he submitted, he would not have been charged AWOL and hence
removed. In finding that the removal was not discriminatory, the Court found that Complainant
did not show the Agency violated the Rehabilitation Act regarding reasonable accommodation, he
did not provide sufficient medical documentation to excuse his absences, and despite Successor
S1 giving him several opportunities to submit such medical documentation, Complainant
steadfastly refused. Because the litigation of the events in issues 1, 5, 6 and 7 were actually
adjudicated and necessary to the judgment in prior litigation by the parties, i.e., before the MSPB,
EEOC, and the United States District Court for the District of Maryland, we dismiss these claims
under the res judicata doctrine of collateral estoppel.

Accordingly, 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.
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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.

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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

August 22, 2019
Date