05990239
03-25-1999
Louis C. Snead, Appellant, Appeal No. 01964068 No. 96-4 Alexis M. Herman, Chairman, Pension Benefit Guaranty Corporation, Agency.
Louis C. Snead, )
Appellant, ) Request No. 05990239
) Request No. 05970577 v. )
Appeal No. 01964068 ) Agency
No. 96-4
Alexis M. Herman, )
Chairman, )
Pension Benefit Guaranty )
Corporation, )
Agency. )
________________________________)
REOPENING OF PRIOR COMMISSION DECISION
INTRODUCTION
The Equal Employment Opportunity Commission (the Commission) hereby
exercises its authority, pursuant to 29 C.F.R. �1614.407(a), to reconsider
the decision in Snead v. Pension Benefit Guaranty Corp., EEOC Request
No. 05970577 (September 21, 1998) for the reasons set forth herein.
ISSUE PRESENTED
The issue presented is whether the decision in EEOC Request No. 05970577
properly ordered the agency to process appellant's sexual harassment
allegation.
BACKGROUND
The following is a summary of the relevant facts and procedural history
of this case.
On October 26, 1995, appellant advised the agency that he allegedly had
been sexually assaulted. On that same day, a meeting�which included
the EEO manager�was held to discuss the matter. On March 1, 1996,
appellant contacted an EEO counselor regarding his sexual harassment
allegation and then filed an EEO complaint on the matter.
In its final decision (FAD), the agency dismissed the complaint on the
grounds that appellant's contact with the EEO counselor on March 1,
1996 was untimely. On appeal, the decision in EEOC Appeal No. 01964068
(February 12, 1997) affirmed the FAD. When appellant requested
reconsideration, the previous decision denied appellant's request but
reconsidered the decision in EEOC Appeal No. 01964068 on its own motion.
The previous decision found that following the October 26, 1995 meeting,
the EEO Manager prepared a report of the incident which subsequently
became the EEO Counselor's report and which identified the date of
initial EEO contact as October 26, 1995. Because of the reliance on
the EEO Manager's report as the EEO counselor's report, the previous
decision found that an inference was raised that the meeting was �akin
to an EEO counseling session.� Because the meeting on October 26,
1995 was sufficient to be considered EEO counselor contact and because
there was no evidence to show that appellant had been advised of his
rights and responsibilities in this regard, the previous decision found
that the agency erred in dismissing the matter. The previous decision
reversed the decision in EEOC Appeal No. 01964068 and ordered the agency
to process appellant's sexual harassment allegation.
In its October 27, 1998 letter, the agency contends--inter alia--that
the issue of whether appellant was sexually assaulted on October 26,
1995 has already been determined in another forum and that principles
of collateral estoppel should bar relitigation of the issue.
In response to the above argument, appellant asserts that collateral
estoppel does not apply because his "collective bargaining representative
advanced the matter to arbitration" and that he (appellant) "had no
right to arbitration; his union was the party with standing to file for
arbitration; and, his union was the party in the arbitration matter."
ANALYSIS AND FINDINGS
At the outset, we take judicial notice of the record and the decision in
EEOC Appeal No. 02990004.<1> At issue therein was appellant's removal
on the following charges: 1) his false accusation of sexual assault
and 2) compounding this fabrication by submitting false claims under
the Federal Employee Compensation Act (FECA). Appellant elected to
challenge his removal through the negotiated grievance procedure by
invoking expedited arbitration.<2> Following a hearing, an arbitrator
issued a final decision finding that appellant had falsely accused an
agency official of sexually assaulting him and that his removal therefore
was proper. When appellant appealed from the arbitrator's decision, the
decision in EEOC Appeal No. 02990004 dismissed the appeal. The decision
found that appellant had failed to raise evidence or arguments regarding
any allegations of discrimination in the hearing before the arbitrator.
Consequently, the arbitrator's decision contained no matters subject to
the Commission's review.
The Commission was unaware of the above information when the previous
decision was issued. Thus, we find it appropriate to determine whether
principles of collateral estoppel bar appellant from relitigating the
issue of whether he was sexually assaulted by an agency official.
The Commission previously has held that the doctrine of collateral
estoppel is applicable to discrimination claims. See Fitz-Gerald v. TVA,
EEOC Request No. 05910573 (January 16, 1992). Under 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)(citing Parklane Hosiery Co., Inc v. Shore, 439 U.S. 322, 326 n.5
(1979); see also Buchagan v. Dep't of Health and Human Services, EEOC
Request No. 05940948 (June 3, 1996). 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. Montana, 440 U.S. at 154-55.
Notwithstanding his assertions to the contrary, the Commission finds that
appellant elected to challenge his removal under the agency's negotiated
grievance procedure as provided in 29 C.F.R. �1614.301(a). During the
process, appellant was represented by the union and had the opportunity
to present documentary evidence and witnesses testimony. The central
issue in the arbitration hearing was whether appellant had fabricated
the claim that an agency official had sexually assaulted him. The
outcome of the arbitration regarding the removal was dependent on the
resolution of this issue. If--as the arbitrator actually found--there
was no sexual assault and appellant had fabricated the claim, then the
removal was warranted. If, on the other hand, there had been a sexual
assault and appellant was telling the truth, then the removal was not
warranted. In the instant case, appellant is claiming sexual harassment
discrimination based on the alleged sexual assault. As noted above, the
arbitrator already considered the issue of whether the sexual assault
occurred and determined that it did not.
Having carefully reviewed the parties' arguments and contentions as well
as other record evidence, we further find that there is no evidence to
show that controlling facts or legal principles have changed significantly
since the prior judgment. Finally, we find that there are no other
special circumstances which might warrant an exception to the normal
rules of preclusion. Appellant is collaterally estopped from relitigating
the issue of whether he was sexually assaulted by an agency official.<3>
CONCLUSION
The Commission reconsiders the decision in EEOC Request No. 05970577,
and that decision hereby is REVERSED. There is no further right of
administrative appeal on a decision of the Commission on a request for
reconsideration.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 25, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat 1The decision
in EEOC Appeal No. 02990004 is being
issued simultaneously with that in
the instant case.
2Record evidence showed that the agency was subject to 5 U.S.C. �7121(d)
and that employees were able to raise allegations of discrimination in
the negotiated grievance process.
3Appellant requested and received a thirty-day extension--ending February
16, 1999--for filing a response brief in this case. On February 23, 1999,
appellant submitted an "addendum" to the brief. Appellant's arguments,
and the court cases cited in support thereof, were considered herein
although not addressed directly. Appellant is advised that the Part
1614 regulations govern the processing of Federal sector EEO complaints,
see 29 C.F.R. �1614.301(a), and that the cited cases are inapposite for
that reason.