Michelle L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120181166 (E.E.O.C. Nov. 30, 2018)

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

Michelle L.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120181166

Agency No. ARGORDON12NOV05180

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 11, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Latent Print
Examiner, GS-12 at the Agency’s United States Army Criminal Laboratory (USACIL) in Forest
Park, Georgia.

On December 28, 2012, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of national origin (Iranian), sex (female), and
reprisal for prior protected EEO activity when:

1. Her computer access was restricted.

2. She was informed that her inability to perform her duties might have an adverse
effect on her performance evaluation.

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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3. She was forced to sit in the USACIL supply warehouse at the facility in Forest
Park, Georgia with no work-related duties for more than 90 days from August to
November 2012.

4. On November 5, 2012, she received threats to terminate her employment by
[named individual]; Labor Counselor for USACIL.

5. During November 2012, she contacted management officials, [named individuals]
and sent a written request to the Director, USACIL requesting information
regarding her employment status. Complainant further alleges that the
management officials declined to provide any information.

6. On November 1, 2012, she learned that male employee [named individual], in
Afghanistan and [named individual] at USACIL were involved in similar security
violations and were not subject to any adverse action.

7. She terminated her employment on November 30, 2012.

Prior to filing the instant formal EEO complaint, on October 30, 2012, Complainant filed a
Complaint of Possible Prohibited Personnel Practices with the Office of Special Counsel which
alleged reprisal for whistleblowing. Subsequently, on June 26, 2013, the Office of Special
Counsel informed Complainant of her right to seek corrective action before the Merit Systems
Protection Board (MSPB).

On August 15, 2013, Complainant filed her initial appeal with the MSPB alleging she was
subjected to various acts of reprisal for her reporting Agency fraud, waste and abuse and due to
her sex and national origin. The record indicates that Complainant’s appeal was docketed as an
adverse action appeal under 5 U.S.C. Chapter 75 and as an Individual Right of Action (IRA)
under 5 U.S.C. Chapter 12. MSPB Docket No. AT-1221-13-W-1.2

The MSPB granted Complainant’s request for corrective action in her IRA appeal. However, at
a hearing before the MSPB held June 23 to June 26, 2014, the record indicates that counsel for
Complainant withdrew the claims of discrimination based on sex and national origin.

In its January 11, 2018 final decision, the Agency dismissed the instant formal complaint on the
grounds that Complainant had previously raised the claims in a prior mixed case appeal before
the Merit Systems Protection Board, (MSPB), which awarded Complainant relief under the
Whistleblower Protection Act for the same claims identified as discriminatory in the instant
formal complaint. The Agency noted, and the record supports, that during Complainant’s MSPB
hearing, Complainant withdrew the EEO claims that are raised in the instant complaint.

2 We note there that the Agency has failed to provide the Commission with a copy of the Board’s
Initial Decision in this matter. However, the Commission has independently obtained a copy of
the MSPB Initial Decision referenced above for review.
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In that regard, the Agency determined that there were no issues left to be adjudicated. Therefore,
according to the Agency, the instant matter is properly dismissed.

This appeal followed. On appeal, Complainant argues through counsel that the EEO claims
raised in her MSPB appeal were dismissed by the Board for lack of jurisdiction and, therefore,
should be allowed to proceed in the EEO complaint process.

ANALYSIS AND FINDINGS

A mixed case complaint is a complaint of employment discrimination filed with a federal
agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. §
1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency
or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but
not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall
dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and
29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non-EEO process.

Complainant elected to proceed through the MSPB, filing a complaint with the Office of Special
Counsel prior to her EEO complaint. Moreover, even considering that Complainant filed her
EEO complaint before her formal appeal with the MSPB was docketed, the adjudication of the
case on the merits by the MSPB is tantamount to an election of remedies. See Aho v. Department
of Agriculture, EEOC Request No. 05860085 (May 22, 1985). In Aho, we stated that “the
Commission believes that upholding the unequivocal legislative interest to provide only one
forum in which to challenge the propriety of an agency action alleged to have been based, in
whole or in part, on discriminatory factors, takes precedence over [complainant's] equitable
entitlement to have an adjudication of that issue in one forum or the other.” Further, “the
Commission is mindful of … the doctrine of res judicata, which estops a party from establishing
jurisdiction in a second forum when the involved issues have been decided, or could have been
raised and adjudicated in previous litigation prompted by the same controversy between the same
parties.” See id. citing Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975).

In the present case, the record is clear that Complainant withdrew from consideration the EEO
claims identified in the instant complaint. The record further indicates that Complainant
successfully challenged the claims as reprisal actions for whistleblowing activity in her IRA
appeal in another forum. Consequently, there are no issues to raise within the EEO process. In
that regard, we find that the Agency’s dismissal of the instant matter was proper. In reaching
this conclusion, we are not persuaded by the Complainant’s arguments on appeal that she has not
received remedies she is entitled to. Independent review of relevant MSPB decisions, discloses
that the Board granted Complainant’s Petition for Enforcement concerning the Agency’s
compliance with its April 21, 2016 Initial Decision. Moreover, MSPB records further indicate
that the Board issued an Initial Decision regarding Complainant’s petition for attorney’s fees in
Complainant’s favor. See MSPB Docket No. AT-1221-13-4692-C-1 (May 5, 2017; MSPB
Docket No. AT-1221-13-4692-A-1 (August 18, 2016).

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CONCLUSION

Accordingly, the Agency’s decision is AFFIRMED for the reasons set forth herein.

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.
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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

November 30, 2018
Date