Lilian C.v.Nat’l Aeronautics & Space Admin.

Equal Employment Opportunity Commission

Aug 27, 2019

EEOC Appeal No. 0120181917 (E.E.O.C. Aug. 27, 2019)

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

Lilian C.,1
Complainant,

v.

James F. Bridenstine,
Administrator,
National Aeronautics and Space Administration
(Kennedy Space Center),
Agency.

Appeal No. 0120181917

Hearing No. 510-2017-00174X

Agency No. NCN-16-KSC-00021

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 5, 2018, final
order concerning her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission
VACATES in part the Agency’s final order, and REMANDS the complaint for processing in
accordance with our ORDER below.

ISSUE

The issue is whether the EEOC Administrative Judge (EEOC AJ) properly dismissed
Complainant’s complaint on the grounds that the Merit Systems Protection Board (MSPB) fully
litigated the issues while reaching a determination on Complainant’s subsequent removal claim.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Engineer Program
Management at the Agency’s Exploration Research and Technology Programs Directorate in
Kennedy Space Center, Florida. On March 4, 2016, Complainant filed a formal EEO complaint
alleging that the Agency subjected her to discriminatory harassment on the bases of race
(African-American), and disability (physical), and in reprisal for prior protected EEO activity
since 2014 when:

1. she received a poor performance evaluation for the 2014-2015 performance
period;

2. her supervisor denied her reasonable accommodation request to telework;

3. she was placed on a fixed time and attendance schedule;

4. on April 22, 2014, she received a Letter of Instruction for use of leave;

5. on November 20, 2014, she received an Amended Letter of Instruction for
frequent, unplanned absences; and

6. on January 6, 2016, she received a Letter of Reprimand for failure to follow
supervisory instruction.

On May 10, 2016, the Agency removed Complainant, who then filed a mixed-case appeal with
the MSPB on June 9, 2016. The MSPB Administrative Judge (MSPB AJ) conducted a hearing
on January 19-20, 2017, and issued a decision on January 27, 2017, affirming the Agency’s
decision to remove Complainant. The MSPB AJ found that the Agency did not fail to reasonably
accommodate Complainant and that there was no evidence of race or reprisal discrimination
regarding her removal from the Agency.

At the conclusion of the EEO investigation, Complainant was provided a copy of the
investigative file, and she requested a hearing before an EEOC AJ on January 26, 2017. On
February 23, 2018, the EEOC AJ issued an Order of Dismissal stating that the issues in the
instant complaint had been fully litigated in another forum, namely the MSPB. The EEOC AJ
stated that, under the doctrine of collateral estoppel, once an issue is determined by a court of
competent jurisdiction, that decision precludes re-litigation of the issue in a different cause of
action. The EEOC AJ noted that the record reflected that Complainant raised the claims in the
underlying EEO complaint as an affirmative defense to her removal in her MSPB appeal. The
EEOC AJ stated that, when Complainant raised her affirmative defense, she was obligated to
raise her remaining inextricably intertwined claims in that forum. The MSPB AJ found that
Complainant did not establish that the Agency failed to provide a reasonable accommodation and
that Complainant did not establish the affirmative defense of race or reprisal discrimination. As
such, the EEOC AJ dismissed Complainant’s complaint, with prejudice.
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The Agency issued a final order fully implementing the EEOC AJ’s decision.

CONTENTIONS ON APPEAL

Complainant, through her attorney, argues that the EEOC AJ erred because Complainant did not
attempt to litigate the claims in the instant complaint before the MSPB. Complainant
acknowledges that, while the MSPB AJ addressed her claim regarding a denial of a reasonable
accommodation, none of the other issues in her EEO complaint were either raised, or addressed,
in the MSPB decision. Additionally, Complainant argues that the MSPB did not have jurisdiction
over her reasonable accommodation claim.

Regarding the argument that Complainant’s claims were “inextricably intertwined” with her
removal, Complainant asserts that she did not allege that the hostile work environment was the
reason for her removal, or that it was related to the removal in any way. Complainant requests
that the Commission reverse the Agency’s final order and remand the matter back for a hearing.

In response, the Agency argues that Complainant’s claim of discrimination and harassment has
already been fully litigated as an affirmative defense in her MSPB appeal. For Complainant’s
claim that the Agency failed to provide a reasonable accommodation, the Agency argues that the
MSPB can decide an issue of discrimination when it is a basis for an action which the employee
may appeal to the Board. In this case, Complainant alleged that a lack of accommodation caused
her to fail her performance improvement plan, which then led to her removal. As such, the
MSPB had jurisdiction to make a determination regarding the affirmative defense of failure to
provide a reasonable accommodation. The Agency requests that the Commission affirm its final
order implementing the EEOC AJ’s dismissal of Complainant’s complaint.

ANALYSIS AND FINDINGS

As an initial matter, we note that the AJ stated that, under the doctrine of collateral estoppel,
once an issue is determined by a court of competent jurisdiction, that decision precludes re-
litigation of the issue in a different cause of action. The Commission has previously held that the
doctrine of collateral estoppel is applicable to discrimination claims. See Fitz-Gerald v. Tenn.
Valley Auth., EEOC Request No. 05910573 (Jan. 16, 1992). Also, in Magnallanes v. Dep't of
Justice, EEOC Request No. 05900176 (July 13, 1990), the Commission noted that the doctrines
of res judicata and collateral estoppel both fall within the purview of “res judicata,” each
concerning the preclusive effect of a prior adjudication. Bezelik v. Nat'l Sec. Agency, EEOC
Request No. 05A11104 (May 8, 2003).

As explained by the Commission in Magnallanes, the first doctrine is res judicata itself, or claim
preclusion. This approach provides that a final judgment on the merits bars further claims by the
same parties based on the same claim or cause of action and issues relevant to that claim, treating
the judgment as the full measure of relief to be accorded between the same parties. Under true
res judicata, when the judgment is rendered for the defendant, the plaintiff’s claim is
extinguished, and the judgment then acts as a bar. Id.
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The second 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. Id.

Upon review, we find that the EEOC AJ properly dismissed Complainant’s reasonable-
accommodation claim but improperly dismissed Complainant's hostile work environment claim
on the grounds that her complaint was fully litigated before the MSPB.

We find no persuasive evidence here that the MSPB AJ, either expressly or implicitly, assumed
jurisdiction of Complainant's harassment claim. The MSPB AJ, in initially describing
Complainant's appeal, stated that “[o]n June 9, 2016, [Complainant] filed this appeal from the
agency’s action removing her from the position of AST, Engineer Program Management, GS-
0801-11, effective May 10, 2016. … The action was based upon a charge that [Complainant’s]
performance was unacceptable in one or more critical elements of her position and was taken
under 5 U.S.C. Chapter 43.” This was the claim over which the MSPB found it had jurisdiction,
pursuant to 5 U.S.C. § 4303(e) and 5 C.F.R. § 432.106(a).

Clearly, the MSPB AJ's decision addressed the question of whether Complainant's removal was
the result of discriminatory animus because she raised this as an affirmative defense.
Complainant argued that her removal was the result of discrimination due to a failure to
accommodate and disparate treatment. The MSPB AJ found that Complainant was an individual
with a disability, and that the Agency accommodated her by providing alternative work space in
other buildings. Regarding Complainant’s request to telework as a reasonable accommodation,
the MSPB AJ found that the Agency did not fail to reasonably accommodate Complainant when
it denied her request because she did not explain how telework would improve her performance.
The MSPB AJ also determined that Complainant’s race, disability, and prior EEO activity, were
not factors in her removal from the Agency.

Complainant argued before the MSPB that her removal resulted from the Agency’s failure to
accommodate. We find that the failure-to-accommodate claim cannot be sensibly bifurcated from
her removal claim, and that the MSPB AJ properly issued a determination on this claim.
Complainant’s reasonable-accommodation claim was adjudicated in the MSPB proceeding and
necessary to the determination on her removal claim.

However, based on the totality of the record, we are not persuaded that Complainant's
harassment claim was fully litigated and addressed by the MSPB AJ. We do not find that the
MSPB assumed jurisdiction over Complainant’s claim of a hostile work environment. We note
that harassment is not an agency action over which the MSPB typically has jurisdiction, but that
the MSPB may, in its discretion, consider harassment as it pertains to an involuntary
(constructive) discharge or retirement. See Thomas v. Dep’t of the Army, EEOC Appeal No.
0120082616 (Nov. 10, 2008). In this case, Complainant did not allege that her removal was a
constructive discharge.
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Further, we note that the Commission has long ago abandoned the doctrine of claims being
“inextricably intertwined” because the MSPB generally does not have jurisdiction over non-
appealable matters, even if they are related to appealable matters. See Complainant v. Dep't of
Health and Human Servs., EEOC Appeal No. 0120130459 (Aug. 28, 2014); Complainant v.
Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan. 8, 2014) (wherein the
Commission essentially overturned the doctrine of inextricably intertwined).

A review of the MSPB AJ’s decision reveals that there is no mention of Complainant's
harassment claim. Because the instant complaint raises a cause of action distinct from the
removal, i.e., a hostile work environment claim, we do not find that res judicata bars
Complainant from prosecuting her harassment complaint. Further, because the MSPB AJ did not
decide the harassment issues not related to the reasonable-accommodation claim, the doctrine of
collateral estoppel does not bar Complainant from pursuing those issues. Accordingly, we will
vacate the Agency’s final order adopting the EEOC AJ’s dismissal of Complainant’s harassment
claim, and remand this claim, in accordance with the Order below.

CONCLUSION

We find that the EEOC AJ improperly dismissed Complainant’s harassment claim because it was
not fully litigated by the MSPB; and that she properly dismissed Complainant’s failure to
accommodate claim because it was fully litigated by the MSPB. Therefore, after a careful review
of the record, including Complainant's arguments on appeal, the Agency's response, and
arguments and evidence not specifically discussed in this decision, the Commission VACATES
in part the Agency's final action, and remands the matter to the Agency in accordance with this
decision and the ORDER below.

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC’s Miami District
Office within thirty (30) calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall hold a hearing and issue a decision on the harassment claim or issue a decision without a
hearing on the claim, in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a
final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g).
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The Agency’s final report must contain supporting documentation when previously not
uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her
representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission. 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. 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

August 27, 2019
Date