0120181228
09-06-2018
Felton S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120181228
Hearing No. 551-2015-00054X (formerly 551-2013-00213X)
Agency No. 4E-980-0032-142 (formerly 1E-985-0006-13)
DECISION
On July 17, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency did not issue a final action following the April 17, 2017 the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Maintenance Mechanic (Mail Processing Equipment (MPE))-09/P at the Agency's Seattle Priority Mail Annex in Kent, Washington.
On March 2, 2013, Complainant filed an equal employment opportunity (EEO) complaint, as amended, which the Agency defined as alleging that he was discriminated against by the Agency in reprisal for protected EEO activity [under Title VII] when:
1. His prior complaint was improperly processed by the National EEO Investigative Service Office, which does not have authority to process his complaints;
2. Around November 2012, the ACE computer in the standby area was removed and he was restricted to using the computer in sight of his Manager's desk and next to his door;
3. On December 4, 2012, he reported a hostile work environment and requested and was denied leave for the rest of the week; subsequently on January 28, 2013, he was verbally advised of the outcome of his harassment allegations and management did not take proper action; and he requested a copy of the report and it was not provided;
4. On December 5, 2012, he was given instructions from his first line supervisor (S1) although he was previously advised due to the reported hostile work environment that an Acting Supervisory Operation Supervisor would be the buffer between him and S1;
5. On December 6, 2012, when attempting to access the Master Check list in eMars, the password did not work; subsequently on December 9, 2012, the password still did not work and a supervisor-level password was created;
6. On December 15, 2012, he was assigned to replace a heavy conveyor motor and spent the day removing heavy metal side places by himself;
7. On December 28, 2012, he was included in an e-mail from S1 regarding too many mis-sent;
8. On January 13, 2013, he became aware S1 disposed of more of his equipment and he had saved another heavy motor for him to install by himself;
9. On January 14, 2013, his request for annual leave was denied;
10. On January 20, 2013, he was the only MPE scheduled for Lock-Out-Tag-Out training;
11. On January 22, 2013, his computer use was restricted;
12. On January 24, 2013, he was called into the office for an investigative interview; and subsequently requested two-weeks stress leave but was only given three days;
13. On February 6, 2013:
a. his Manager demanded that he, at his expense and within nine days, provide more medical documentation regarding his Family Medical Leave Act (FMLA) approved medical condition (back pains) and color blindness (non-disability);
b. his Manager unlawfully gave him a "Request for Permanent Light Duty Assignment" form even though he didn't want Light Duty;
14. On (unspecified date(s)) he was forced to work alone;
15. On February 13, 2013, he was improperly placed on Light Duty;
16. On (unspecified date(s)) he was not offered suitable work;
17. His medical information was released by Postal Officials;
18. On February 19, 2013, his Manager informed him that the Occupational Health Services Office gave him a permanent restriction -VISION;
19. On April 8, 2013:
a. inspectors asked whether he had a machete in his car; indicated they had a right to take it; and demanded it out of his car;
b. his Manager gave him a letter dated April 8, 2013, that although indicating it was "wholly voluntary," warned he could be placed on an "enforced leave status," and his Manager demanded that he participate in the District Reasonable Accommodation Committee (DRAC);
20. On May 8, 2013, his Manager gave him a letter indicating that he "pose[d] a significant safety risk," restricted him from performing duties involving colored wiring, and advised that it served as a proposal to place him on enforced leave;
21. He was not permitted to get out of the forced change-of-schedule on May 21-22, 2013;
22. His Supervisor demanded documentation for his May 25, 2013, FMLA absence;
23. He has not received information pursuant to his May 29, 2013 "Request for Information;"
24. On May 30, 2013, his Supervisor:
a. gave him a letter placing him on "Enforced Leave;"
b. tore-up his FMLA leave request;
c. stated that he wouldn't pay him unless he completed another form without FMLA on it;
d. gave him a direct order to leave the building and yelled that he was refusing that direct order; and
e. grabbed his work sheet;
25. He was denied FMLA leave during the "Enforced Leave" period;
26. On June 7, 2013, his Manager gave him a direct order to leave the "PMA;"
27. He has not been provided with Department of Labor Forms (e.g., WH-380E); and
28. Another employee has been given his MPE work to perform.
In March 2013, the Agency dismissed issue 1 for failure to state a claim. It accepted the remaining issues for investigation.
Prior to the completion of the investigation, on June 25, 2013, Complainant filed appeal SF-0752-13-0633-B-1 with the Merit Systems Protection Board (MSPB). The MSPB characterized the appeal as challenging the Agency's action dated May 30, 2013, placing him on enforced leave status.
On August 2, 2013, the Agency provided the completed report of investigation to Complainant, and advised he may request a hearing on his complaint before an AJ appointed by the EEOC. Complainant timely requested a hearing on August 29, 2013. On September 23, 2013, the AJ dismissed, without prejudice, Complainant's request for a hearing because he previously filed an appeal with the MSPB, and ordered that his complaint be returned to the Agency for proper processing with the MSPB.
In a final Agency decision (FAD) dated November 4, 2013, the Agency dismissed issues 23 and 25 for failure to state a claim, and found no discrimination on the remaining claims. The Agency gave Complainant the right to file an appeal with the Merit Systems Protection Board (MSPB), not the EEOC.3
On November 7, 2013, while his appeal was pending before the MSPB, Complainant filed Civil Action 1 (2:13-cv-02011) in the United States District Court for the Western District of Washington. His April 28, 2014 amendment of his Civil Action 1 complaint superseded his prior Court complaint and amended complaint filings. In claim 2 of Civil Action 1, Complainant alleged that his administrative complaint (1E-985-0006-13) was not properly defined or processed. In claim 6 of Civil Action 1, Complainant alleged that the Agency violated the Americans with Disability Act (ADA) by making inquiries and taking various actions, e.g., in February 2013, putting him on light duty because he is color blind, making medical inquiries on his color blindness, in March 2013, requesting that he participate in DRAC for being color blind, at various times being forced to work alone, and when S1 was asked in the administrative EEO process why Complainant was not provided suitable work, S1 responded he was placed on enforced leave on May 30, [2013]. In claim 7 of Civil Action 1, Complainant alleged that the Agency violated "42 U.S.C. � 2000e et seq." when on April 8, 2013, it demanded he go to DRAC, and on May 30, 2013, placed him on enforced leave, tore up his FMLA leave request and advised him only a non-designated FMLA leave request would be approved. In claim 16 of Civil Action 1, Complainant alleged that his appeal with the MSPB was pending more than 180 days.
Many of the Civil Action 1 claims arise from the same facts alleged in Complainant's administrative complaint. On September 11, 2014, the Court dismissed Civil Action 1 claims 2 and 7 because Complainant asked for relief under the Administrative Procedures Act (APA), but the Court does not have judicial review under the APA pursuant to the Postal Reorganization Act. The Court dismissed claim 6 under Federal Rules of Civil Procedures rule 12(6)(b) for failure to state a claim because Complainant failed to allege elements of an ADA claim, and his own allegations showed the Agency accommodated his color blindness. The court dismissed claim 16 under Federal Rules of Civil Procedures rule 12(6)(b) because EEO complaints are generally not actionable in District Court.
On June 30, 2015, Complainant filed Civil Action 2 (2:13-cv-02011) in the United States District Court for the Western District of Washington. Therein, he alleged violations of Title VII, the Age Discrimination in Employment Act of 1967 (ADEA), the ADA/Rehabilitation Act, the APA, and other authorities. In his statement of facts to support these violations, Complainant recounted facts similar to those in his administrative complaint, e.g., he was the only MPE on his shift, in December 2012, he reported that he was subjected to a hostile work environment, referenced an investigative interview around January 2013, his request for 80 hours of stress leave on January 24, 2013, the Agency placing him on work restrictions in February 2013, because of his vision and giving him a demand letter for medical documentation, the Agency conducting a threat investigation for his use of a machete, and in April 2013, demanding that he give the machete to Agency Inspectors, on May 8, 2013, giving him a notice that while voluntary, he will be placed on unpaid enforced leave unless he participates in the reasonable accommodation process and prohibiting him from performing any duties that requires the ability to distinguish color wiring, and on May 30, 2013, placing him on enforced leave and ripping up his request for FMLA leave.
On February 23, 2016, the Court dismissed Civil Action 2 with prejudice because his claims were barred by res judicata and collateral estoppel. The Court generally characterized Civil Action 2 as claiming violations of Title VII, the ADEA, the ADA/Rehabilitation Act, FMLA, and the APA relating to claims he made with the EEOC and the handling of those complaints. The Court reasoned that Civil Action 2 had the same transactional nucleus of facts as Civil Action 1 - the same period of February 2011 to February 2014, and practically identical claims - ADA/Rehabilitation Act claims. The Court found that while Complainant contended he subsequently exhausted various administrative remedies since bringing Civil Action 1, this does not preclude the application of res judicata and claim preclusion, even if the EEOC gave him civil action appeal rights after Civil Action 1 closed. The Court found that the dismissal for lack of subject matter jurisdiction because the APA did not apply to the Agency on most of the claims in Civil Action 1 presented a wrinkle - dismissals for lack of subject matter jurisdiction ordinarily do not have claim preclusive effect. But the Court found that prior determinations of lack of jurisdiction may be binding on subsequent proceedings under the doctrine of collateral estoppel on that issue. The Court found that collateral estoppel applied here because the Court in Civil Action 1 found that the vast majority of Complainant's claims requesting court review of the Agency's decisions on his internal grievances were not viable for lack of jurisdiction.
On February 12, 2016, the MSPB issued an initial decision finding that the Agency did not retaliate against Complainant when it placed him on enforced leave, and upholding the enforced leave.
On March 14, 2016, Complainant filed Civil Action 3 (2:16-cv-00377) in the United States District Court for the Western District of Washington. He alleged in large part that his being placed on enforced leave on May 30, 2013, was discriminatory in violation of the ADA/Rehabilitation Act, Title VII, and the ADEA.
On June 17, 2016, the Court found that Civil Action 3 against the Agency involved the same claims as Civil Action 2, and the Court's decision on Civil Action 2 constituted a final decision on the merits. Accordingly, the Court dismissed Civil Action 3 against the Agency for claim preclusion.
On April 17, 2017, the AJ appointed by the EEOC dismissed Complainant's complaint for lack of jurisdiction. Citing to the adjudications in Civil Actions 1 and 3 and by the MSPB, the AJ found that Complainant was barred from relitigating his case before the EEOC.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) requires the dismissal of an administrative complaint that that is the basis of a civil action decided by a United States District Court in which the complainant was a party. Here, Complainant litigated the claims in his administrative complaint against the Agency in Civil Actions 1, 2 and 3, and they were dismissed with prejudice by the District Court.
Accordingly, the AJ's decision, which became the Agency's final action, is AFFIRMED, and Complainant's appeal is dismissed.
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.
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. 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
September 6, 2018
__________________
Date
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.
2 At times, this number has been referred to as 4E-90-0032-14.
3 The Agency gave Complainant the wrong appeal rights. Only the decision to place him on enforced leave (the warning and proposal to do this, without the accompanying language, were subsumed into the enforced leave decision) were appealable to the MSPB (mixed). Accordingly, the FAD should have contained mixed appeal rights to the MSPB on the enforced leave decision only, and non-mixed rights to request a hearing from the EEOC by an AJ on all the other claims.
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