[Redacted], Arnold S., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021002510 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnold S.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021002510 Hearing No. 570-2020-00607X Agency No. DOS-0230-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated March 2, 2021, fully implementing the EEOC Administrative Judge’s dismissal of 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 K-9 Mentor for a private company (“Contracting Company”), which was under contract with the Agency to provide services for the Agency’s Antiterrorism Assistance Program in Kabul, Afghanistan. On May 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: On January 17, 2019, Complainant was terminated for a second time (after being rehired following an earlier termination), because he had complained to Contracting Company 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. 2021002510 2 about his supervisor creating a hostile work environment.2 On June 18, 2019, the Agency accepted Complainant’s complaint for processing. Prior to filing the complaint at issue in this appeal, however, Complainant had filed an earlier, separate EEO complaint following his first termination, which occurred on February 14, 2018. After filing this earlier complaint, and once the required 180-day time period under 29 C.F.R. § 1614.407(b) had elapsed, Complainant filed a civil action in the U.S. District Court for the District of Columbia (“District Court”) against both the Agency and Contracting Company on June 5, 2019. After filing his initial action in District Court, Complainant filed an amended civil complaint, which included allegations about both terminations.3 The Agency moved to dismiss Complainant’s civil action for failure to state a claim, arguing that Complainant was not an employee of the Agency and therefore was not able to bring a Title VII claim against it. The Agency argued to the District Court that Complainant was a contractor working for Contracting Company, not the Agency. After litigating the issue fully in briefs before the District Court, the District Court granted the Agency’s motion to dismiss for failure to state a claim. The District Court held that based on his pleadings, Complainant was a contractor and could not bring a Title VII claim against the Agency. Regarding Complainant’s current EEO administrative complaint, Complainant elected to have a hearing before an Administrative Judge (AJ). The Agency filed a motion to dismiss Complainant’s complaint before the AJ, who granted the motion on two grounds: (1) Complainant was “precluded from litigating his current complaint before [the AJ], as he was not an Agency employee, as held by a U.S. District Court Judge,” and that collateral estoppel (issue preclusion) applied here, where “a federal district court has already determined a legal issue necessary for a adjudication of a subsequent complaint”; and (2) “Complainant’s complaint must be dismissed under 29 C.F.R. § 1614.107(a)(3),” because the “Commission’s regulations require dismissal of an EEO complaint that is the basis of a pending civil action in a U.S. District Court in which a complainant is a party.” After the AJ dismissed Complainant’s complaint, the Agency issued a final decision fully implementing the AJ’s order. The instant appeal followed. 2 Complainant’s first termination on February 14, 2018, was the subject of a separate EEO complaint after it occurred. Subsequently, Contracting Company rehired Complainant for the same position, and a second termination occurred on January 17, 2019. The second termination is the subject of this appeal. 3 Complainant did not include the second termination as an official claim against the Agency in his civil action. 2021002510 3 Complainant argues on appeal that collateral estoppel (issue preclusion) does not apply because the issue being raised here-namely, Complainant’s second termination-was not before the District Court. Rather, the District Court’s dismissal only applied to Complainant’s prior EEO complaint regarding his first termination. Consequently, Complainant argues, the matter at issue in this appeal “was not fully contested by the parties and was not submitted for judicial determination.” Complainant also argues that applying collateral estoppel in this case “would work a basic unfairness upon Complainant.” Specifically, Complainant contends that because his second EEO complaint was still under investigation during the litigation in District Court, he had no incentive to fully litigate the issue of whether he was an Agency employee or a contractor. In its statement opposing Complainant’s appeal, the Agency argues that Complainant’s first and second EEO complaints against the Agency do not raise distinct issues, and that “the nature of his relationship with the contractor and with the Agency was exactly the same” at the time of both terminations. Therefore, the issue already determined by the District Court-that Complainant was a contractor and not an Agency employee-is the same issue necessary for adjudication in this case. The Agency also contends that the record shows Complainant actively and fully litigated his case before the District Court. ANALYSIS AND FINDINGS The issue of whether Complainant was a contractor or employee is material to this appeal. EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered departments, agencies, and units, Part 1614 applies to all employees and applicants for employment. 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). 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). The practical effect of collateral estoppel is that it bars the relitigation of previously adjudicated issues deemed necessary to the judgment in a prior litigation between the parties. Elias R. v. Office of Pers. Mgmt., EEOC Appeal No. 0120161707 (July 27, 2016); Complainant v. Dep’t of the Army, EEOC Appeal No. 0120123456 (Feb. 11, 2015), req. for recon. den’d, EEOC Request No. 0520150273 (July 30, 2015). 2021002510 4 Here, Complainant filed a prior civil action in District Court, which had competent jurisdiction to hear his claim of employment discrimination against the Agency. The question of whether Complainant was an Agency employee, as opposed to a contractor, was fully adjudicated in the civil action and was necessary for the District Court’s judgment. The parties both briefed the issue before the District Court. Based on those briefs and on Complainant’s own amended civil complaint, the District Court found that Complainant was a contractor, not an Agency employee, and that he was unable to state a claim against the Agency. Moreover, Complainant had sufficient incentive to litigate the issue of whether he was a contractor. By the time he filed his civil action, he had already been terminated for the second time and had filed his second EEO complaint against the Agency. Complainant was aware that the Agency was actively seeking to dismiss his civil claim on the basis of his status as a contractor, and that such contractor status could affect any subsequent claim of discrimination by the Agency. Complainant had every reason to argue that he was an Agency employee in federal court and did so in his brief opposing the Agency’s motion to dismiss. The issue underlying this appeal is substantially the same issue that the District Court resolved: whether Complainant was a contractor and therefore fails to state a claim under Title VII. The District Court held that Complainant was a contractor. The nature of his working relationship with the Agency at the time of both terminations is the same now as it was before the District Court, as are the legal principles that govern that relationship. Complainant has not established that special circumstances exist for an exception to the normal rules of issue preclusion. Therefore, we find that Complainant is collaterally estopped from raising the issue of whether he was an Agency employee, and that because he was an independent contractor at the time of his termination, he has failed to state a claim under Title VII. Because we find that collateral estoppel applies to the issue of whether Complainant was a contractor during the relevant time period, we do not address whether dismissal was also appropriate under 29 C.F.R. § 1614.107(a)(3). CONCLUSION The Agency’s dismissal of the complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021002510 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002510 6 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 June 14, 2021 Date