[Redacted], Zonia C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 14, 2021Appeal No. 2021001587 (E.E.O.C. Apr. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zonia C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001587 Agency No. 200H-0642-2019103034 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 3, 2020, dismissing a formal complaint complaint of unlawful employment discrimination in violation of 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 Behavioral Health Technician at the Agency’s facility in Philadelphia, Pennsylvania. On May 16, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability. In an August 22, 2019 partial acceptance letter, the Agency accepted the following claim for investigation: 1. On May 9, 2019 Complainant received a proposed removal. 2. Complainant’s supervisor subjected Complainant to a hostile work environment when she requested a meeting with Complainant in her office without telling Complainant in advance, knowing that this action would increase Complainant’s anxiety level. 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. 2021001587 2 3. On March 29, 2019, Complainant’s supervisor denied Complainant’s requested accommodation. The Agency dismissed claim (1), the proposed removal, reasoning that the Merits Systems Protection Board (MSPB) issued a decision on the removal action. The Agency therefore found that this proposed removal merged with the removal before the MSPB. The Agency dismissed claim (2), the hostile work environment claim, for failure to state a claim reasoning that the alleged incidents are not sufficiently severe or pervasive to set forth an actionable claim of harassment. The Agency initially accepted claim (3), the denial of a reasonable accommodation, as the sole claim for investigation. However, on December 3, 2020, the Agency issued a final decision dismissing claim (3), the denial of a reasonable accommodation claim. The Agency reasoned that Complainant’s denial of a reasonable accommodation claim was fully litigated and adjudicated by the MSPB; thus, collateral estoppel applies. Specifically, the Agency stated: [t]he Agency’s sole reasons for Complainant’s removal was her medical inability to perform the duties of her position. When Complainant appealed her removal to the MSPB, she raised the affirmative defense that the Agency did not afford her reasonable accommodation because it could have reassigned her to a vacant funded position. The MSPB thoroughly analyzed Complainant’s failure to accommodate affirmative defense beginning with her first request for accommodation…through the Agency’s purported efforts to reassign her. The MSPB AJ concluded that ‘the Agency has discriminated against [Complainant] based on her disability and its removal cannot be sustained.” The MSPB AJ ordered relief including…retroactive restoration and [reassignment] to another position with backpay. Final Agency Decision at 4. The instant appeal followed. Complainant does not submit a statement or brief in support of her appeal. ANALYSIS AND FINDINGS Proposed Removal We find that the Agency properly dismissed claim (1), the proposed removal. The record reflects that Complainant appealed her removal to the MSPB. While the MSPB generally does not have jurisdiction over non-appealable matters, the Commission has found that a proposed action merges with the decision on an appealable action, i.e. a proposed removal merges with the decision to remove. See Wilson v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012). Based on the foregoing, we find that the Agency properly dismissed claim (1) because the MSPB issued a decision regarding the removal decision. 2021001587 3 Harassment/Hostile Work Environment We further find that the Agency properly dismissed claim (2), her hostile work environment claim, for failure to state a claim. In the instant mater, Complainant alleged that her supervisor called her into her office for meetings without providing her with the reason for the meeting in advance. The alleged incidents are not sufficiently severe or pervasive to set forth an actionable claim of harassment. Denial of Reasonable Accommodation Finally, the Agency properly dismissed claim (1), the denial of a reasonable accommodation claim. The doctrine of res judicata provides that a final judgment on the merits of a complaint bars further claims by the same parties based on the same complaint or cause of action and issues relevant to that complaint, treating the judgment as the full measure of relief to be accorded between the same parties. Magallanes v. Dep’t of Justice, EEOC Request No. 05900176 (July 13, 1990). Under the doctrine of res judicata is the principle of collateral estoppel or issue preclusion. This doctrine recognizes that suits addressed to particular claims may present issues relevant to suits on other claims. Thus, issue preclusion bars re-litigation of issues actually adjudicated and necessary to the judgment of prior litigation between the parties. In the administrative process, this doctrine applies to claims which were fully litigated before the MSPB. Syndor v. Office of Personnel Management, EEOC Appeal No. 0120101050 (June 3, 2010). In the instant matter, the MSPB fully litigated Complainant’s denial of a reasonable claim when the MSPB AJ found that the Agency’s removal of Complainant could not be sustained. In a detailed analysis, the MSPB AJ found that “the Agency failed to meet its obligation to reasonably accommodate her by reassigning her to another position. Accordingly, . . . he Agency has discriminated against [Complainant] based on her disability and its removal action cannot be sustained.” MSPB Docket No. PH-0752-19-0264-I-2 (Jan. 16, 2020). Based on the foregoing, we find that the MSPB adjudicated and issued a determination on the merits of Complainant’s denial of a reasonable accommodation claim, as it was necessary to the determination of Complainant’s removal claim. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint. 2021001587 4 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). 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). 2021001587 5 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. 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 14, 2021 Date Copy with citationCopy as parenthetical citation