[Redacted], Tess W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (DoD) (Defense Logistics Agency (DLA)), Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2023000269 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tess W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (DoD) (Defense Logistics Agency (DLA)), Agency. Appeal No. 2023000269 Hearing No. 532-2022-00037X Agency No. DLAC-21-0213 DECISION On October 18, 2022, Complainant, who is represented by counsel, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an October 7, 2022 final Agency action adopting the decision of an EEOC Administrative Judge (AJ) dismissing her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue Complainant was employed by the Agency as a Suitability and Drug Testing Specialist, GS-0301-09, at DLA Human Resources Services - DoD Customers in Richmond, Virginia. On September 23, 2021, Complainant filed an EEO complaint alleging that she was discriminated against based on her race (African American), age (58), and in reprisal for prior protected EEO activity when the Agency issued her a notice of decision to remove her from federal service effective July 28, 2021. 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. 2023000269 2 Within hours before the effective time of her removal, Complainant resigned. On August 27, 2021, Complainant filed an appeal to the Merit Systems Protection Board (MSPB) alleging that she involuntarily resigned (constructive discharge). The MSPB assigned the appeal docket number DC-0752-21-0615-I-1. Meanwhile, the Agency investigated Complainant’s EEO complaint, and she requested a hearing before an EEOC AJ. On September 17, 2021, the MSPB AJ issued an initial decision without a hearing finding it did not have jurisdiction over Complainant’s appeal because: (1) she was a probationary employee, and (2) even if she was not probationary, her resignation was voluntary. The MSPB reasoned, in part, that Complainant resigned only after receiving notice of her removal, which made her claim of coercion inherently unpersuasive. The MSPB ruled that in the absence of an otherwise appealable action, it was unable to consider Complainant’s allegations of race and disability discrimination.2 It dismissed her appeal. On September 30, 2021, an EEOC AJ dismissed Complainant’s hearing request. The AJ found that Complainant was not removed because she resigned before the removal took effect. The AJ found that the issue of whether Complainant’s resignation was voluntary was previously litigated before the MSPB, which found it was. She concluded that Complainant was collaterally estopped from relitigating whether her resignation was involuntary. In support of this, the AJ cited Brenton W. v. USPS, EEOC Appeal Nos. 0120160603 & 0120162078 (May 24, 2017) (Complainant filed a grievance challenging his removal based on his conduct regarding a vehicular accident. A central fact in the complainant’s arbitration hearing, where the parties were afforded a full opportunity to present evidence and argument and examine and cross-examine witnesses, was whether he was in the vehicular accident, and the arbitrator ruled he was. Per 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. Accordingly, the complainant is collaterally estopped from relitigating this fact.). The AJ ruled that Brenton applies to the instant case. She added that Complainant was given an opportunity to submit evidence during the EEO investigation to show the proposed removal was based on discrimination, and did not. We note that the AJ’s decision was not on the merits, meaning it did not rule on discrimination. It was a dismissal of a hearing request. The Agency’s final action adopted the AJ’s decision. The instant appeal followed. On appeal, Complainant argues that the AJ’s decision was incorrect for a number of reasons, and requests that her complaint be reinstated for further processing. In reply, the Agency argues the opposite. 2 Our office inquired with the MSPB if a petition for review was filed with the Board. On March 10, 2023, the MSPB replied no petition was filed. 2023000269 3 ANALYSIS AND FINDINGS EEOC regulation 29 C.F.R. § 1614.302(c)(2)(ii) requires that if the MSPB finds that it does not have jurisdiction over a matter, the agency shall recommence processing of the mixed case complaint on the same matter as a non-mixed EEO complaint. We disagree that Brenton applies here. Rather, we find that Waters v. Veterans Affairs, EEOC Appeal No. 01945703 (Feb. 23, 1995) controls here. In Waters, after the complainant received a notice of termination, he resigned prior to the effective date of the termination. The complainant appealed his removal to the MSPB, alleging sex discrimination. He also filed an EEO complaint. The MSPB dismissed the appeal for lack of jurisdiction ruling the resignation was voluntary. The agency dismissed the complainant’s EEO complaint because it had the same claim as in his MSPB appeal. Citing Borghese v. Defense, EEOC Request No. 05920734 (Nov. 27, 1993), the Commission reversed the agency’s dismissal. It found that the MSPB’s finding that a resignation is voluntary is not res judicata on whether a complainant was constructively discharged based on discrimination because the EEOC and MSPB have different standards for determining what constitutes a constructive discharge. See also, Mohammad M. v. Army, EEOC Appeal No. 2021001920 (Aug. 4, 2022). (Complainant received a notice of proposed removal and resigned in lieu of being terminated by the agency. He filed both an appeal with the MSPB and an EEO complaint alleging he was constructively discharged. The MSPB dismissed the appeal without a hearing because it did not have jurisdiction over Complainant’s constructive discharge claim. Meanwhile, the complainant’s EEO complaint came before an EEOC AJ, who assumed jurisdiction over the constructive discharge claim because the MSPB dismissed his appeal for lack of jurisdiction. Following a hearing, the EEOC AJ found that the complainant was constructively discharged “when the Agency issued him a proposal to remove on actions that constituted unlawful reprisal.” The AJ awarded back pay from the date of the complainant’s resignation to the date he started another job outside the Agency. The agency issued a final order rejecting the AJ’s decision and appealed. The Commission decided that the AJ’s finding of retaliation was supported by substantial evidence and awarded back pay. It rejected the Agency’s argument that because the MSPB previously made a decision on the constructive discharge claim the EEOC AJ erred by ruling on the merits of this claim. The Commission reasoned that the MSPB, without a hearing, found it did not have jurisdiction over Complainant’s constructive discharge claim.). Like Waters and Mohammad M., we conclude that the MSPB’s ruling that it did not have jurisdiction over Complainant’s discriminatory constructive discharge claim is not dispositive of the issue in the EEO complaint process. The Agency’s final action adopting the AJ’s dismissal decision is REVERSED. ORDER Within fifteen (15) days of the date of this decision, the Agency must submit a renewed request for a hearing on behalf of Complainant, as well as the complaint file, to the appropriate EEOC hearings unit via FedSEP, and include this appellate decision with its request. 2023000269 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2023000269 5 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2023000269 6 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 March 15, 2023 Date