[Redacted], Jarrett C, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 2020005005 (E.E.O.C. Apr. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarrett C,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, (Veterans Benefits Administration), Agency. Appeal No. 2020005005 Hearing No. 560-2018-00273X Agency No. 200J-0331-2017104110 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 11, 2020, dismissing a formal complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Rating Veterans Service Representative, Grade GS-12, at the Agency’s Regional Office in Saint Louis, Missouri. On July 11, 2017, Complainant initiated EEO Counselor contact. On July 25, 2017, the Agency removed Complainant from federal service. On August 2, 2017, Complainant filed an appeal from his removal with the Merit Systems Protection Board (MSPB). 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. 2 2020005005 On August 16, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability (incapacitating immobilization, anxiety, obsessive compulsive disorder) and in reprisal for prior protected EEO activity when: 1. From March 2017, and continuing through July 25, 2017, Complainant was denied a reasonable accommodation; and 2. On July 25, 2017, Complainant was removed from federal service. After an investigation, the Agency provided Complainant with a copy of its investigative report and noticed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 14, 2019, the Agency moved to dismiss the formal complaint. Specifically, the Agency asserted that Complainant’s instant complaint comprised the same claims had been previously litigated and decided at the MSPB. On June 6, 2019, the EEOC AJ provided Complainant and his representative ten calendar days to respond to the Agency motion to dismiss. Neither Complainant nor his representative responded. On July 1, 2019, the EEOC AJ dismissed Complainant’s case. On August 8, 2020, citing 29 C.F.R. §§ 1614.107(a)(1), the Agency issued a final decision dismissing Complainant’s complaint for stating the same claims that had already been decided by the MSPB. The instant appeal followed. On appeal, pro se, Complainant contended the Agency improperly denied him a reasonable accommodation and removed him from Agency employment. ANALYSIS AND FINDINGS As an initial matter, we find this case more properly analyzed pursuant to 29 C.F.R. § 1614.107(a)(4). That regulation states, in relevant part, that the Agency shall dismiss a complaint where the matter was raised in an appeal to the MSPB and § 1614.302 indicates that the complainant has elected to pursue the non-EEO process. In accordance with 29 29 C.F.R. § 1614.302(b), if both an EEO complaint and a MSPB appeal are filed, then “whichever is filed first shall be considered an election to proceed in that forum.” Complainant appealed his removal to the MSPB on August 2, 2017. Complainant did not file the formal EEO Complaint until August 17, 2017. Consequently, Complainant elected to file at MSPB rather than this Commission. Moreover, where the MSPB has adjudicated a case on its merits, Complainant effectively elected MSPB in lieu of the EEOC process. As a result of electing the MSPB, EEOC cannot grant Complainan a second or separate adjudication. Khera v. Dep’t of Def., EEOC Request No. 05920280 (Apr. 23, 1992). As stated above, the Complainant elected another forum which rendered its decision. We reviewed the MSPB’s detailed decision. See Murphy v. Dep’t of Veterans Affairs, CH-0752-17- 0491-I-1 (Aug. 30, 2018). On the reasonable accommodation issue, which is inextricably tied to the removal, the MSPB AJ found Complainant had not cooperated when the Agency made 3 2020005005 reasonable requests for additional medical information. As a result, the MSPB AJ found no support for Complainant’s Rehabilitation Act claim of discriminatory failure to accommodate. Next, the MSPB AJ considered, then rejected Complainant’s claims of discriminatory removal. The MSPB AJ upheld the Agency removal action based on Complainant’s misconduct. The doctrine of res judicata, or claim preclusion, provides that final judgment, on the merits, bars further claims by the same parties on the same cause of action or relevant issues. Magallanes v. Dep’t of Justice, EEOC Request No. 05900176 (July 13, 1990). Similarly, the collateral estoppel doctrine, or issue preclusion, provides that particular claims may present issues relevant to other claims, but issue preclusion bars re-litigation of issues from prior litigation between the parties. Collateral estoppel and res judicata prevent EEOC from readjudicating Complainant’s case. Syndor v. Ofc. of Pers. Mgmt., EEOC Appeal No. 0120101050 (June 3, 2010). As such, we conclude the Agency’s final dismissal adopting the AJ’s dismissal was proper. Finally, we note Complainant missed an opportunity to petition the EEOC to review the MSPB’s discrimination determinations. The record shows the MSPB AJ notified Complainant that he had the option to petition EEOC for review of the MSPB AJ’s discrimination findings within thirty days thereafter. Complainant failed to file such a petition for review to the EEOC. CONCLUSION The Agency’s final decision dismissing the instant formal complaint for the reason discussed above 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. 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). 4 2020005005 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. 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. 5 2020005005 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 April 19, 2021 Date