0120161502
03-29-2018
Lorita S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lorita S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161502
Hearing No. 520-2015-00507X
Agency No. ARUSMA-13OCT-03807
DECISION
On March 23, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final action dated February 18, 2016, fully implementing the decision by an Equal Employment Opportunity Commission Administrative Judge (AJ) dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Legal Technician, GS-0986-07 at the Office of the Staff Judge Advocate in the United States Military Academy in West Point, New York. Her duties included recording and transcribing hearings, preparing records and cases, and making exhibits.
On December 2, 2013, Complainant filed a formal complaint alleging, in relevant part, that the Agency subjected her to discrimination and harassment based on her sex (female), disability, and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. From March 2013 onward, she was denied an effective reasonable accommodation;2
2. From March to September 2013, she was denied fair and equal distribution of honor case hearings;
3. On September 19, 2013, she received a memorandum of counseling; and
4. On October 15, 2013, she was forced to sit around and do nothing all day.
The AJ dismissed Complainant's complaint because Complainant filed a civil action on the same matters.
The Agency removed Complainant effective January 27, 2012, for medical inability to perform the duties of her position and then declining an alternative job offer (made at the GS-6 level) which would accommodate her medical condition.
Complainant appealed her removal to the Merit Systems Protection Board (MSPB). In its February 2013 initial decision, the MSPB reversed the removal, finding disability discrimination, reinstating Complainant and interim relief if either party filed a petition for review. She was reinstated and returned the workplace.
Meanwhile, the Agency filed a petition to review. Thereafter, the Board sustained the removal and found no discrimination. In so doing, the MSPB found that the Agency proved the charge of medical inability to perform the position, that Complainant failed to act in good faith in the reasonable accommodation interactive process by refusing to explore/accept a mobility scooter, and she declined the Agency's consequent offer of another position. It found that it was collaterally estopped from finding a scooter was not a reasonable accommodation for Complainant to gain entrance into the building where a court room was located because a United States District Court previously ruled it was so for her. Petitioner v. Department of the Army, 121 M.S.P.R. 189 (May 30, 2014). The Agency implemented the removal around June 2014.
On July 3, 2014, Complainant filed a civil action against the Agency in the United States District Court, New York Southern, 7:14cv5026. In her March 23, 2015, second amended complaint, which the court accepted as the actionable civil action complaint, Complainant alleged discrimination based on disability and reprisal for prior EEO activity when the Agency failed to reasonably accommodate her, she was subjected to a hostile work environment, and she was terminated. While Complainant has contended that her second amended complaint was an appeal from the Board decision, she alleged therein that the Agency failed to accommodate her, created a hostile work environment, and harassed and embarrassed her in the company of her coworkers because she requested reasonable accommodation after she returned to work (via interim reinstatement).
On February 19, 2016, the Court granted (with prejudice) the Agency's motion to dismiss the second amended complaint. In so doing, the Court found that Complainant failed to show that she was subjected to a hostile work environment when she was coerced to navigate a ramp with a steep incline into the building with a courtroom that was not compliant with the Americans with Disabilities Act because she was not required to walk up the ramp and was offered the scooter. The Court found that Complainant failed to prove she was not reasonably accommodated, and put forth no facts to support her allegation that she was terminated because of her disability, as opposed to her refusal to accept accommodations that would permit her to do her job. On Complainant's claim that management harassed and embarrassed her in the company of her coworkers because she requested reasonable accommodation, the Court found that she failed to provide any details, incidents, or the identity of individuals contributing to the alleged hostile work environment. The United States Court of Appeals for the 2nd Circuit dismissed Complainant's appeal in May 2016.
ANALYSIS AND FINDINGS
Issue 2 regards Complainant's claim that upon her return to work following her interim reinstatement, the Agency continued to fail to reasonably accommodate her, a reference to her physical inability to access where hearings were located, resulting in the uneven distribution of cases. Report of Investigation (ROI), at 763, 833. Issue 3 regards Complainant's second line supervisor (S2) giving her a memorandum dated September 19, 2013, documenting that she was counseled to remove from her cubicle handwritten signs. Contested honor hearings resumed on September 17, 2013, the beginning of the new academic year. A case was assigned to Complainant for transcription. Coworker 1 taped the hearing and took notes thereof because it was in a facility Complainant was unable to physically access. The next day Complainant posted signs in her cubicle to do unto others as you would have them undo to you, when you discriminate against an individual you discriminate against their entire family, and so forth. S2 stated that she told Complainant to take the signs down because an employee complained of feeling threatened by one of the signs - they were disruptive. ROI, 37, 770, 840 - 841, 1001 - 1002. Issue 4 regards Coworker 1, who was taping and taking notes of a hearing assigned to Complainant for transcription in a building she could not physically access coming to her desk and saying he could not work because of a computer software issue (Complainant suggested he said they were supposed to set it up the night before), and asking to borrow a computer from another coworker for the hearing. Complainant volunteered hers, testifying she did so because the situation arose due to assistance she was receiving from Coworker 1, so she did not want to put out the other coworker.3 Complainant related that this incident was part of her denial of reasonable accommodation and hostile environment claims. ROI, 37, 772 - 773, 843 - 845, 1009 - 1011.
We find that issues 1 - 4 are within the scope of Complainant's second amended civil action complaint. Therein, Complainant alleged discrimination on the denial of reasonable accommodation and hostile work environment before and after her removal and interim reinstatement. The United States District Court dismissed Complainant's civil action with prejudice. Under the doctrine of res judicata, 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. 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. Svenson v. Department of Labor, EEOC Appeal No. 01860654 (Nov. 17, 1986). To the extent the denial of reasonable accommodation claim in Complainant's civil action second amended complaint only concerned events that occurred before her January 2012 removal, the doctrine of issue preclusion applies to issue 1 of her administrative complaint which regards the continuation of the same denial of reasonable accommodation after her interim reinstatement - no access to hearings. Applying the above, we find that issues 1 - 4 are closed under the doctrine of res judicata.
The Agency's final order 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.
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
March 29, 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 The Agency defined this issue as being from 2010 onward. At the later investigatory Fact-Finding Conference, Complainant indicated she was referring to events starting around March 2013. Report of Investigation (ROI), at 760 - 761.
3 The record suggests that the accommodation was for Coworker 1 to record and take notes of the hearing, which Complainant would later transcribe.
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