Kyle L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Sep 9, 2020

2020001408 (E.E.O.C. Sep. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyle L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020001408 Hearing No. 490-2019-00232X Agency No. 6X-000-0022-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 21, 2019, dismissing his 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. BACKGROUND Complainant, a Distribution Window Clerk, PS-06/O, at the Agency’s Post Office in West Memphis, Arkansas, was terminated from employment with the Agency in April 2010. Complainant filed an EEO complaint regarding this termination on April 21, 2010. On March 17, 2011, the Agency issued a final decision finding that it did not discriminate against Complainant when it removed him from employment. Complainant then appealed the matter to the Commission and, in Complainant v. U.S. Postal Serv. Appeal No. 0120112416 (Jan. 19, 2012), the Commission affirmed the Agency’s final decision. 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. 2020001408 2 Complainant subsequently filed a civil action in the U.S. District Court for the Eastern District of Arkansas; however, the court dismissed Complainant’s lawsuit. Case No. 3:12-CV-00106-SWW (E.D. Ark. Nov. 9, 2012). Complainant filed another formal complaint on August 14, 2016. In that complaint, Complainant raised, inter alia, his termination; his denied reinstatement; and the Agency’s failure to issue a new PS Form 50 to show that he was retired. In Jermaine I. v. U.S. Postal Serv., EEOC Appeal No. 0120170082 (Feb. 17, 2017), the Commission affirmed the Agency’s decision dismissing the complaint for untimely EEO Counselor contact, for raising the same claims in previous EEO complaints, and an impermissible collateral attack on another proceeding. On May 15, 2019, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (mental) and in reprisal for prior protected EEO activity when: 1. Since September 13, 2013, when the Office of Personnel Management (OPM) approved Complainant’s disability retirement, the Agency has failed to correct Form 50s issued in 2011 related to Complainant’s removal from the Agency; 2. On February 5, 2019, the Agency submitted false, misleading, and potentially defamatory information in a pleading related to a case before the Merit Systems Protection Board (MSPB); and 3. Since on or about March 8, 2019, and continuing, the Agency has not responded to Complainant’s request for reinstatement. On June 3, 2019, the Agency dismissed Claim (1) as raising a matter that was raised in a prior complaint. See EEOC Appeal No. 0120170082. The Agency dismissed Claim (2) for failure to state a claim because it constituted a collateral attack on another forum’s proceedings, in this case, the MSPB. After investigating Claim (3), the Agency provided Complainant with a copy of the investigation and notified him of his right to request a hearing. After Complainant requested a hearing, the Agency filed a motion to dismiss the complaint based on the doctrine of res judicata. Specifically, the Agency explained that Claim (3) was a clear attempt to re-litigate his 2010 termination, a claim that has already been decided by the Commission and the U.S. District Court. The Agency argued that res judicata and collateral estoppel clearly applied and Complainant cannot re-litigate his termination. The EEOC Administrative Judge (AJ) assigned to this matter reviewed the litigation history and agreed with the Agency that it was “abundantly clear that this present case is yet another attempt to gain relief that was sought but not awarded to Complainant in a fully litigated prior case.” As a result, on November 13, 2019, the AJ dismissed the complaint on the basis of res judicata. The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2020001408 3 CONTENTIONS ON APPEAL On appeal, Complainant argues that the instant litigation concerns his retirement and is independent from his termination. Complainant further clarifies the relief he seeks to include “loss of placement in the position he would have held had the wrong not occurred,” back pay, future wages, retirement benefits, loss of promotion opportunity, loss of investment opportunities, and a 25-year service award. ANALYSIS AND FINDINGS Claims (1) and (3) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The doctrine of res judicata, or claim preclusion, 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. See Magnallanes v. Dep't of Justice, EEOC Request No. 05900176 (July 13, 1990). In this case, the Agency has demonstrated, through reference to prior Agency and Commission decisions, that the matters raised in Claims (1) and (3) were raised and adjudicated in prior EEO complaints. Thus, dismissal is necessary under the doctrine of res judicata. Having thoroughly reviewed the record and history of Complainant's allegations in both this and other proceedings and venues, it is clear Complainant is attempting to revive litigation that has long since been decided. Accordingly, the Commission finds that dismissal of these claims was proper. Claim 2 The Commission finds that Claim (2) fails to state a claim under the EEOC regulations because it constitutes a collateral attack on a separate proceeding. Generally, complaints involving another administrative proceeding fail to state a claim within the meaning of EEOC regulations, as they constitute impermissible attempts to lodge a collateral attack. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998) other citations omitted. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as workers’ compensation and related OWCP processes. See Fisher v. Dept of Def., EEOC Request No. 05931059 (July 15, 1994). For instance, in Hogan v. Dep’t of the Army, we reasoned that an allegation that agency officials provided misleading statements to OWCP was an attempt to lodge a collateral attack because reviewing such a claim would require the Commission to determine what workers’ compensation benefits the complainant would likely have received, which is outside EEOC authority. EEOC Request No. 05940407 (Sept. 29, 1994). In this case, Claim (2) alleges that the Agency defamed Complainant through statements made before the MSPB. 2020001408 4 The proper forum for Complainant to have raised challenges to actions which occurred during the MSPB process is within that process itself because any remedial relief available to Complainant would be through the MSPB. There is no remedial relief available to Complainant on this matter through the EEO complaint process. CONCLUSION After a review of the record and all arguments, including those not specifically stated herein, the Agency's final decision dismissing Complainant's complaint is 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. 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). 2020001408 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 September 9, 2020 Date