01A02274_r
02-28-2002
Donald E. Gryder, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Donald E. Gryder v. Department of Transportation
01A02274
February 28, 2002
.
Donald E. Gryder,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A02274
Agency Nos. 3-98-3004
3-98-3019
DECISION
Complainant, a former Railroad Safety Inspector, GS-2121-12, initiated
contact with an EEO Counselor on September 9, 1997. Complainant filed
a formal EEO complaint (Agency No. 3-98-3004), dated October 14, 1997,
wherein he claimed that he was discriminated against on the bases of his
sex (male) and in reprisal for his prior EEO activity under Title VII when
in the period of 1996-97, he was denied a promotion; denied a within-grade
salary increase; denied the opportunity to telecommute; limited in his
travel; and his responsibilities were curtailed. Complainant filed
another formal EEO complaint (Agency No. 3-98-3019), dated December 18,
1997, wherein he claimed that he was discriminated against on the bases
of his sex (male) and in reprisal for his previous EEO activity under
Title VII with regard to his assignments; the supervision of his work;
and a memorandum dated September 26, 1997, stating that he was not to
be compensated for his overtime work. Both complaints were accepted
for investigation.
In a decision dated December 15, 1999, the agency stated that the
complaints had been consolidated for processing and that both complaints
were dismissed. With regard to Agency No. 3-98-3004, the agency
determined that the denial of the within-grade salary increase was
raised by complainant in an appeal before the Merit Systems Protection
Board (MSPB). Thus, the agency dismissed this claim pursuant to 29
C.F.R. �1614.107(a)(4). The agency also dismissed this claim, pursuant
to 29 C.F.R. �1614.107(a)(2), on the grounds that the December 1996 denial
of a within-grade salary increase was not raised with an EEO Counselor in
a timely manner. The agency dismissed complainant's claim that he was
denied a promotion on the grounds that complainant failed to initiate
contact with an EEO Counselor in a timely manner. According to the
agency, the position was filled in 1996, but complainant did not contact
an EEO Counselor until September 9, 1997. As for the remaining claims
set forth in Agency No. 3-98-3004 and the entire complaint in Agency
No. 3-98-3019, the agency dismissed these matters based on the doctrine
of collateral estoppel. According to the agency, complainant raised the
issues in an MSPB case concerning his removal. The agency determined that
complainant argued in his MSPB appeal that his supervisors hampered his
performance by limiting his travel funds; by assessing and criticizing
his job performance on pretextual grounds; by improperly concluding
that his job performance was unsatisfactory; and by refusing to provide
him with substantive guidance. The agency states that complainant also
submitted exhibits with his MSPB appeal that contained discussions of
the supervision of his work, as well as the issues of denial of overtime,
telecommuting, and the limiting of his travel. The agency noted that the
MSPB's Initial Decision sustaining complainant's removal addressed the
supervision of complainant's work, deficiencies in his work, the denial
of overtime, telecommuting, and the limiting of his travel. The agency
further determined that no controlling facts or legal principles have
changed significantly since the prior litigation and judgment; and that
no other special circumstances warrant an exception to the normal rules
of preclusion. Thereafter, complainant filed the instant appeal.
The agency may dismiss claims previously raised in the MSPB process.
See 29 C.F.R. �1614.107(a)(4). The record includes an MSPB Initial
Decision wherein the MSPB affirmed the agency's denial of complainant's
within-grade salary increase. It is clear that the MSPB decision
involved the same denial of within-grade increase that is at issue in
Agency No. 3-98-3004. Accordingly, the agency's dismissal of this claim
was proper and is AFFIRMED.<1>
With regard to complainant's claim that he was denied a promotion,
we observe that the agency decision considered the relevant incident
to be complainant's nonselection for a 1996 vacancy in Charlotte,
North Carolina. However, the EEO Counselor's report notes that a
second position in Charlotte was created and complainant was placed in
that position. The EEO Counselor's report indicates that in the instant
complaint, complainant is contesting the fact that subsequent to receiving
the position, he was not promoted, but the female employee selected
in 1996 was promoted. Complainant's claim that he was not promoted
was still present 45 days and less prior to his EEO Counselor contact.
Therefore, the agency's dismissal of this claim was improper and the
dismissal is REVERSED. This claim is REMANDED for further processing
pursuant to the Order below.
The Commission previously has held that the doctrine of collateral
estoppel is applicable to discrimination claims. See Fitz-Gerald
v. Tennessee Valley Authority, EEOC Request No. 05910573 (January 16,
1992). Under the doctrine of collateral estoppel, �once an issue is
actually and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation.� Montana
v. United States, 440 U.S. 147, 153 (1979) (citing Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979)); see also Buchhagen
v. Department of Health and Human Services, EEOC Request No. 05940948
(June 3, 1996).
A determination as to whether it is appropriate to apply the doctrine
of collateral estoppel includes the following: 1) whether the issues
presented in the present litigation were in substance the same as those
resolved in the prior litigation; 2) whether controlling facts or legal
principles have changed significantly since the prior judgment; and, 3)
whether other special circumstances warrant an exception to the normal
rules of preclusion. Montana, 440 U.S. at 154-55.
In the instant case, the record clearly shows that complainant was also
a party to the action before the MSPB which was decided on September
30, 1998. Complainant does not argue, and we find no evidence in the
record to suggest, that controlling facts or legal principles have changed
significantly since the MSPB decision on September 30, 1998. Next, we
must determine if the issues in the instant complaints are in substance
the same as those resolved by the September 30, 1998 MSPB decision.
Upon review of the instant complaints and the remainder of the record, we
find that the agency inappropriately applied the doctrine of collateral
estoppel. The issue addressed in the September 30, 1998 MSPB decision
was complainant's removal from employment. The matters at issue in the
instant complaints involve complainant's work assignments, the supervision
of his work, compensation for his overtime work, travel limitations, the
denial of telecommuting, and the curtailing his job responsibilities.
The agency stated that several issues in the instant complaints were
raised in conjunction with complainant's appeal to the MSPB concerning
his removal from employment. Our review reveals that although several
of the incidents currently at issue were mentioned to varying degrees
in the MSPB appeal and Initial Decision, the record indicates that any
alleged discrimination was not raised and there was no determination
rendered with regard to whether discrimination occurred. Therefore,
the doctrine of collateral estoppel is inapplicable. Accordingly,
the agency's dismissal of the aforementioned claims was improper and is
hereby REVERSED. These claims are hereby REMANDED for further processing
pursuant to the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all
submissions to the complainant. If the agency does not comply with the
Commission's order, the complainant may petition the Commission for
enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant
also has the right to file a civil action to enforce compliance
with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29
C.F.R. � 1614.503(g). Alternatively, the complainant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated
in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 28, 2002
__________________
Date
1In light of our affirmance of the agency decision on this grounds,
we need not address the agency's alternative grounds for dismissal.