Milan S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Oct 11, 2018

0120180232 (E.E.O.C. Oct. 11, 2018)

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

Milan S.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120180232

Hearing No. 531-2014-00370X

Agency No. APHIS-2014-0019

DECISION

On October 17, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 14, 2017, final order dismissing his 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Environmental
Protection Specialist, GS-0028-13, at the Agency’s work facility in Riverdale, Maryland.

On December 9, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him in reprisal for his prior protected EEO activity under Title VII when on
September 27, 2013, management removed a portion of his duties.

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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The record reflects that Complainant and the Agency previously entered into a settlement
agreement on September 19, 2013, regarding a prior complaint filed by Complainant. The
agreement provided in part for the Agency:

To reassign Complainant to the immediate supervision of …Chief, Environmental
and Risk Analysis Services for as long as Complainant remains in his current
position with the Environmental and Risk Analysis Services unit in PPD.
Complainant’s duties under [Chief] will be commensurate with his position and
may or may not include [Environmental Justice or EJ] duties. If [Chief] is out of
the office, on detail, or leaves this position, Complainant will report to [Chief’s]
assign or successor. The change in direct supervision will occur within ten (10)
calendar days after the effective date of this Agreement. This provision does not
restrict the Agency from any future reorganization or realignment of PPD.
Complainant’s ongoing placement in this position will be subject to all laws,
regulations, and policies of general applicability under the direction of APHIS.

On October 22, 2013, Complainant alleged that the Agency breached the settlement agreement
when management officials removed certain “prominent, prestigious, and desirable” duties from
him, including several Point of Contact (POC) Consultant duties. On May 1, 2014, the Agency
determined that it had not breached the settlement agreement. Complainant appealed and, in
Complainant v. Dep’t of Agric., EEOC Appeal No. 0120142189 (Oct. 2, 2014), the Commission
affirmed the Agency’s determination that it had not breached the settlement agreement.

At the conclusion of the investigation of the instant complaint, 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. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s Motion to Dismiss and issued a decision on September 6, 2017.

The AJ applied the doctrine of collateral estoppel as grounds for dismissal. The AJ observed that
the Agency persuasively argued that the same issue was raised in both the instant complaint and
Complainant’s separate claim that the settlement agreement was breached. The AJ noted that in
the breach claim Complainant alleged that the most prestigious and meaningful duties were taken
away from him. According to Complainant, he lost the most desirable portion of his duties and
they were not replaced by meaningful duties. Complainant further claimed that the removed duties
comprised a significant portion of his workload. The AJ observed that the Commission ruled in
the prior matter that the Agency removed duties, but assigned Complainant other duties which
were meaningful, important and critical to the Agency’s mission. The AJ noted that the
Commission stated that the assigned revised duties were commensurate with Complainant’s GS-
13 position.

The AJ stated that she rejected Complainant’s argument that collateral estoppel does not apply
because the Commission previously did not consider whether the removal of his duties was due to
reprisal.
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Further, the AJ stated that by finding Complainant was assigned meaningful duties commensurate
with his position, the Commission determined that the new duties do not constitute an adverse
action. The AJ reasoned that this finding also was determinative that the reassignment of duties
would not deter a reasonable person from engaging in EEO activity.

The AJ found that even if collateral estoppel did not apply here, Complainant has failed to establish
a prima facie case of reprisal. The AJ stated that Complainant cannot show that he suffered an
adverse action in light of the Commission’s prior decision finding that the duties assigned to
Complainant were meaningful.

The Agency subsequently issued a final order wherein it implemented the AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the only reason the Chief had for removing his prestigious
assignments after the settlement agreement was executed was punitive. Complainant argues that
the Chief acknowledged the duties were not removed due to the quality of his work. According to
Complainant, the removal of his duties and restricting him from interacting with other
organizations and maintaining contacts violated the terms and conditions of his employment.
Complainant argues that collateral estoppel does not apply and that he established a prima facie
case of reprisal.

In response, the Agency maintains that Complainant raised the exact same assignments were taken
away in his breach claim as he has in the instant matter. The Agency notes that the Commission
ruled in Complainant v. Dep’t of Agric., EEOC Appeal No. 0120142189 (Oct. 2, 2014), that the
duties given to him after he settled his prior complaint were commensurate with his GS-13
position. The Agency reasons that our ruling in the breach claim concerning the assignments being
commensurate with his GS-13 position precludes Complainant from stating that the assignments
being taken away from him materially altered the terms or conditions of his employment.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the
case. In the context of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206
(July 11, 2003).

The AJ concluded that Complainant was collaterally estopped from relitigating the issue of the
removal of his duties on September 27, 2013.
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According to the doctrine of collateral estoppel, “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.” Montana v.
United States, 440 U.S. 147, 153 (1979) (citing Parkland Hosiery, Inc. v. Shore, 430 U.S. 322, 326
n.5 (1979)). A determination as to whether it is appropriate to apply the doctrine includes the
following: (1) whether the issues presented in the present litigation were in substance the same as
those resolved in the prior litigation; (2) whether controlling facts or legal principles have changed
significantly since the prior judgment; and, (3) whether other special circumstances warrant an
exception to the normal rules of preclusion. See Snead v. Pension Ben. Guar. Corp., EEOC
Request Nos. 05970577 and 05990239 (Mar. 25, 1999) (citing Montana, 440 U.S. at 154-55).

The record reveals that the Commission previously addressed in EEOC Appeal No. 0120142189
the matter of Complainant’s most prestigious and meaningful duties being taken away from him
on September 27, 2013. Complainant believes that the matter at issue here is different in light of
the fact that he is pursuing a reprisal claim rather than a breach claim. We find that the same matter
of the removal of these duties on the identical date is again raised in the instant complaint. We
discern no significant change in controlling facts or legal principles since the prior decision. We
also see no special circumstances that warrant an exception to the normal rules of preclusion.
Therefore, we agree with the AJ that the issues presented in the current matter are in substance the
same as those resolved by the Commission in Complainant’s breach claim. In light of this finding,
it is unnecessary to address the merits of Complainant’s reprisal claim.

CONCLUSION

The Agency’s final order is hereby 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.
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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.
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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

October 11, 2018
Date