01A34998
12-13-2004
Sandra S. Allison v. Department of Justice
01A34998
12-13-04
.
Sandra S. Allison,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A34998
Agency No. D-00-3566
Hearing No. 230-A1-4061X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant filed a complaint in which she claimed that the agency had
discriminated against her on the bases of race (African-American), sex
(female), religion (Jehovah's Witness), disability (unspecified mental
disability), and age (D.O.B. April 20, 1950) when she was subjected to
a hostile work environment prior to September 2, 1999.
On September 2, 1999, complainant physically assaulted her supervisor.
She was terminated, effective January 2000. She appealed her termination
to the Merit Systems Protection Board (MSPB), which ultimately affirmed
the removal action. As a defense in her MSPB appeal, complainant
claimed that the agency engendered a hostile work environment, which
led to her assault on the supervisor. Among the incidents identified by
the MSPB Administrative Judge (AJ) were: the supervisor's cancellation
of complainant's previously approved leave; placement of complainant
on leave restrictions; disapproval of several of complainant's leave
requests; the supervisor's proposal of a 10-day and 45-day suspension;
the supervisor incorrectly told complainant she had not submitted proper
medical documentation for leave; the supervisor told complainant she
did not have common sense; and the supervisor interrupted complainant
on the phone during the incident which led to complainant's removal.
While the MSPB action was pending, the agency investigated complainant's
EEO complaint, and thereafter referred it to an EEOC AJ. The EEOC AJ
dismissed the complaint on the ground of res judicata, which concern
the preclusive effect of a prior adjudication. Res judicata, or claim
preclusion, provides that a final judgment on the merits bars further
claims by the same parties based on the same claim and issues relevant
to that claim, treating the judgment as the full measure of relief to be
accorded between the same parties. Bezelik v. National Security Agency,
EEOC Request No. 05A11104 (May 8, 2003). Not only does claim preclusion
prohibit the re-litigation of claims decided in a forum it also prohibits
those claims which could have been brought in that forum. See Truxson
v. Department of the Treasury, EEOC Request Nos. 05920774 & 05920898
(January 21, 1993).
After reviewing the record, we find that the EEOC AJ's decision to
dismiss the complaint was proper. When complainant raised her hostile
environment claim before the MSPB as an affirmative defense to her
removal, she was obligated to raise her discrimination claims in that
forum. She did not do so. She is therefore barred by res judicata from
re-litigating her hostile environment claim before the EEOC. She has
effectively abandoned that claim. See Harris v. United States Postal
Service, EEOC Petition No. 03960005 (February 1, 1996).<1>
Complainant has not submitted a brief or statement in support of her
appeal, and consequently, has not presented any argument or evidence
that contradicts or undermines the EEOC AJ's findings and conclusions.
Accordingly, the agency's final order implementing the AJ's decision
will be upheld.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____12-13-04______________
Date
1 �[Petitioner] did not introduce any evidence at the hearing [before
the MSPB] in support of his allegations of discrimination based
on race or physical disability; nor did he allege that the agency's
actions were taken in reprisal for prior EEO activity. For this reason,
and notwithstanding the full Board's provision of appeal rights to the
Commission, we find that petitioner abandoned his claims of discrimination
and we deny consideration.�