Marcel M.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

0120180610 (E.E.O.C. Aug. 28, 2019)

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

Marcel M.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120180610

Hearing Nos. 520-2016-00052X, 520-2017-00551X

Agency No. HS-CBP-01820-2014

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's November 28, 2017, final action concerning 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 worked as a GS-1895-12
Customs and Border Protection Officer (CBPO) and Firearms Instructor for the Agency at John
F. Kennedy International Airport in Jamaica, New York.

On September 24, 2014, Complainant filed an EEO complaint, which he subsequently amended,
alleging that the Agency subjected him to discrimination on the basis of reprisal for prior
protected EEO activity under Title VII when:

1. On August 11, 2014, his assignment to conduct quarterly qualifications for a supervisor
was reassigned to a coworker (C1), and, when Complainant questioned this assignment,

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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C1 yelled and lunged at him;

2. On August 12, 2014, he learned that a supervisor (S1) did not submit his name for
consideration for a one-year temporary duty assignment (TDY) to the Federal Law
Enforcement Training Center (FLETC);

3. On September 12, 2014, C1 engaged in a verbal dispute with Complainant;

4. After the September 12, 2014, verbal dispute, the Chief (S2) ordered Complainant into
his office, and, when Complainant did not comply, S2 directed Complainant to provide a
statement explaining why he refused a direct order;

5. By letter dated September 29, 2014, Complainant was notified that he was being
temporarily reassigned to the Mail Branch effective immediately, pending the outcome of
an investigation into the incidents described in claims 1 and 3 above;

6. On November 26, 2014, Complainant was asked to meet with management in the Mail
Branch Supervisor’s office and ordered to surrender his firearm and CBPO credentials;
and

7. During the month of December 2014, Complainant was denied overtime assignments and
overtime pay due to not having a firearm.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on
October 1, 2015, and the matter was docketed by the Hearings Unit of the EEOC New York
District Office under Hearing No. 520-2016-00052X. Complainant requested that his EEO
complaint be held in abeyance pending the resolution of two related matters that were pending
before the Merit Systems Protection Board (MSPB), and on February 14, 2017, the AJ assigned
to the case dismissed Complainant’s hearing request without prejudice.

The Agency removed Complainant from federal employment effective July 28, 2015. On July
28, 2015, Complainant filed an initial appeal with the MSPB, challenging his removal on 13
grounds, including discrimination based on sex (male), national origin (Hispanic), and retaliation
for prior protected EEO activity, and retaliation for whistleblowing activities and for filing a
prohibited personnel practice (PPP) complaint with the Office of Special Counsel (OSC) on
February 3, 2015.

On June 30, 2015, the OSC issued Complainant a letter that closed his PPP complaint and
provided him with the right to seek corrective action by filing an Individual Right of Action
(IRA) appeal with the MSPB. On September 1, 2015, Complainant filed an IRA appeal with the
MSPB, alleging that, in retaliation for making a protected whistleblowing disclosure:

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1. In August 2014, he was denied a TDY;

2. On September 29, 2014, he was transferred away from the Firearms Branch;

3. On November 26, 2014, his Agency-issued firearm was taken away from him; and

4. In July 2015, he was removed from the Agency.

Complainant’s MSPB appeals were consolidated for hearing, and an MSPB AJ held a three-day
hearing on September 14, September 23, and November 9, 2016. On April 3, 2017, the MSPB
AJ issued an initial decision affirming the Agency’s removal action. On April 5, 2017, the MSPB
AJ issued an initial decision denying the request for corrective action in Complainant’s IRA
appeal. On June 6, 2017, Complainant filed a civil action (identified as 1:17cv4249) in the
United States District Court for the Southern District of New York. The Court’s electronic
docket reflects that the civil action concerns the April 3, 2017, MSPB decision upholding
Complainant’s removal and that the civil action is still pending as of August 6, 2019.

In May 2017, Complainant submitted a new hearing request to the Commission, and on May 30,
2017, the matter was docketed by the New York District Office as Hearing No. 520-2017-
00551X and assigned to the same EEOC AJ who had dismissed Complainant’s previous hearing
request. During a June 19, 2017, status conference, Complainant withdrew claims 1, 3, and 4,
reasoning that the claims were identical to those in his MSPB appeal challenging his removal.

On July 3, 2017, the Agency filed a motion to dismiss the remaining claims. The Agency
contended that the remaining EEO claims could not be relitigated before the EEOC because the
issues were identical to those fully litigated before the MSPB and thus subject to collateral
estoppel or issue preclusion, which is a subset of the doctrine of res judicata. In his opposition,
Complainant argued that his remaining EEO claims should not be dismissed because they were
not identical to those in his MSPB appeals. Specifically, Complainant emphasized that his IRA
appeal only alleged retaliation based on protected whistleblower activity, whereas his EEO
complaint alleged retaliation based on prior protected EEO activity.

On October 19, 2017, the AJ granted the Agency’s motion to dismiss over Complainant’s
objections. The AJ found that, although the claims in Complainant’s IRA appeal were not
identical to the remaining EEO claims, the MSPB AJ adjudicated critical issues that were the
same as those still pending before the EEOC. The AJ further found that the issues that had
already been litigated before the MSPB were necessary to the MSPB AJ’s judgment. The AJ
determined that, although Complainant did not specifically allege the loss of overtime
opportunities in his MSPB appeals, this claim stemmed from the removal of Complainant’s
firearm, and the MSPB AJ addressed this claim in the April 5, 2017, decision. Finally, the AJ
found that the MSPB claims were between the same parties as the EEO claims. Therefore, the AJ
dismissed the remaining claims of the EEO complaint as precluded by collateral estoppel.

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When the Agency did not issue a final action within forty days of receipt of the AJ's decision, the
AJ's decision dismissing Complainant’s complaint became the Agency's final action pursuant to
29 C.F.R. § 1614.109(i). The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the remaining claims of his EEO complaint should not
have been dismissed pursuant to issue preclusion because he did not litigate these Title VII
claims before the MSPB. He argues that he only litigated claims alleging retaliation based on
protected whistleblower activity. Complainant requests that the EEO claims be remanded for a
hearing.

In response to Complainant’s appeal, the Agency contends that the issues were litigated before
the MSPB, albeit based on a different claim. The Agency requests that the dismissal of the EEO
claims based on issue preclusion be affirmed.

ANALYSIS AND FINDINGS

Upon review, we agree with the EEOC AJ that Complainant is precluded from relitigating his
remaining EEO claims because the issues were litigated before and adjudicated by the MSPB.
Under the res judicata doctrine of collateral estoppel, or issue preclusion, “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.” Walton v. Dep’t of the Navy, EEOC Request No. 05980013 (June 17, 1999)
(citations omitted). The Commission has previously applied this doctrine to issues raised before
the MSPB. See, e.g., Buchhagen v. Dep’t of Health and Human Services, EEOC Request No.
05940948 (June 3, 1996).

In Buchhagen, the Commission discussed the appropriate factors for determining whether to
apply collateral estoppel: (1) whether the present claim involves the same parties as the prior
litigation; (2) whether the issue in the present claim is, in substance, the same as the issue
resolved in the prior litigation, i.e., was actually and necessarily determined in the prior
litigation; (3) whether controlling facts or legal principles have changed significantly since the
prior judgment; and (4) whether other special circumstances warrant an exception to the normal
rules of preclusion. Id.

Applying these factors to the instant case, we find that the parties to the present complaint and
the previous MSPB appeals are the same. The critical issues to be determined were actually and
necessarily determined by the MSPB AJ in upholding Complainant’s removal and denying his
request for corrective action. The controlling facts and legal principles have not changed
significantly since the MSPB issued its decisions.

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With regard to the fourth factor, the existence of special circumstances warranting an exception
to the normal rules of issue preclusion, the Commission previously has stated that the appropriate
inquiry is whether the complainant has been granted a full and fair opportunity to litigate the
issue as to which collateral estoppel is to be applied. In Buchhagen, the Commission noted that
“[r]edetermination of the issues is warranted if there is reason to doubt the quality, extensiveness,
or fairness of procedures followed in prior litigation” (citation omitted). Id.

The record reflects that Complainant filed two appeals with the MSPB, which were consolidated
for the purposes of a hearing. The MSPB afforded Complainant an administrative hearing, at
which he had the opportunity to present live and documentary evidence addressing the
circumstances and issues surrounding his remaining EEO claims. Complainant has submitted
neither evidence nor argument to cast doubt on the quality, extensiveness, or fairness of the
MSPB proceeding. See Freddy V. v. U.S. Postal Serv., EEOC Appeal No.0120181179 (Apr. 9,
2019). Accordingly, like the AJ, we conclude that Complainant is estopped from relitigating the
facts underlying his remaining claims, and we find that the AJ’s dismissal of the instant matter
was proper.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action fully implementing the
AJ’s dismissal of Complainant’s EEO complaint because Complainant is estopped from
relitigating these issues under the doctrine of collateral estoppel.

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.
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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.
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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 28, 2019
Date