Michelle L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120181166 (E.E.O.C. Nov. 30, 2018) Copy Citation 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. 0120181166 2 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. 0120181166 3 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). 0120181166 4 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. 0120181166 5 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 Copy with citationCopy as parenthetical citation