0520080766
10-08-2008
Eustace A. Prince, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Eustace A. Prince,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Request No. 0520080766
Appeal No. 0120082203
Agency No. DECA000362008
GRANT OF RECONSIDERATION
The agency timely requested reconsideration of the decision in Eustace
A. Prince v. Defense Commissary Agency, EEOC Appeal No. 0120082203 (July
25, 2008). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record, the
Commission finds that the request meets the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to GRANT the
request.
BACKGROUND
On February 25, 2008, complainant filed an EEO complaint alleging that
he was discriminated against based on his race (Black), color (black),
and national origin (West Indian Heritage) when:
1. he received a Decision to Remove letter on February 23, 2008;
2. his attendance at NSPS training was cancelled;
3. his schedule was changed on October 29, 2006, and February 4, 2008,
to accommodate female co-workers.
On March 8, 2008, the agency issued a final decision. The agency dismissed
claim 1 for failure to state a claim stating that the Commission has no
jurisdiction to review the merits of claims relating to the validity
of a security clearance requirement and the substance of an agency's
security clearance determination. The agency dismissed claim 2 as moot
and claim 3 for untimely EEO Counselor contact.
On appeal complainant's arguments are directed exclusively at
agency's dismissal claim 1. Complainant argued that he complained
not only about the substance of the agency's security clearance
determination, but also that the decision to remove him was motivated
by discriminatory animus. Complainant argued that the agency policy
allowed management to transfer an employee whose security clearance was
denied to a non-sensitive position rather than removing him/her from
employment. Complainant asserted that the agency chose to remove him
rather than reassigning him for discriminatory reasons.
In the previous decision, the Commission determined that the agency
construed claim 1 as merely a challenge to the validity and substance of
the security clearance determination. The Commission found that the issue
of complainant's removal from the agency employment addressed a personal
loss or harm to a term, condition, or privilege of employment, reversed
the agency's final decision, and remanded claim 1 for further processing.
On request for reconsideration, the agency informed the Commission that
on February 26, 2008, complainant filed an MSPB appeal of the agency's
decision to remove him. On May 20, 2008, the Administrative Judge (AJ)
of the U.S. Merit Systems Protection Board (MSPB) convened a hearing
on complainant's appeal of his removal and issued an initial decision
dated July 23, 2008. The agency stated that complainant was provided
an opportunity to present evidence regarding his claims, including the
affirmative defense of unlawful discrimination, and that his claims have
been fully adjudicated by the MSPB, including the claim remanded by OFO.
Accordingly, the agency states that the matter is res judicata.
The federal doctrine of res judicata bars a subsequent action when ever
three criteria are met: (1) there is a final judgment on the merits in
an earlier action; (2) sufficient identity exists between the parties in
the earlier and later suits, and (3) sufficient identity exists between
the causes of action in the two suits. See United States v. Cunan,
156 F.3d 110 (1st Cir.1998).
The record indicates that, after a hearing, the MSPB rendered a decision
on the claim that is identified herein as claim 1. The Commission finds
that the doctrine of res judicata barred the Commission's adjudication
of this issue raised in complainant's EEO complaint.1 Because the
Commission lacked jurisdiction to issue the previous decision, the
previous decision in Appeal No. 0120082203 is VACATED. There is no
further right of administrative appeal on a decision of the Commission
on reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0408)
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
October 8, 2008
Date
1 However, we note that complainant had the right to appeal the MSPB's
decision on the issues of alleged discrimination to this Commission
pursuant to 29 C.F.R. � 1614.303. There is no indication in our records
that he has done so.
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0520080766
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080766