Sandra S. Allison, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionDec 13, 2004
01A34998 (E.E.O.C. Dec. 13, 2004)

01A34998

12-13-2004

Sandra S. Allison, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


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.�