01A23596
08-28-2003
Claude C. Francis, Jr., Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Claude C. Francis, Jr. v. Office of Personnel Management
01A23596
August 28, 2003
.
Claude C. Francis, Jr.,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A23596
Agency No. 99-27
Hearing No. 100-A1-7265X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 22, 2002, 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. In his complaint dated July 21, 1999, complainant, a former
Manager of Customer Service for the U.S. Postal Service, alleged that
he was subjected to discrimination on the basis of disability (severe
depression and anxiety) when the agency delayed approval of his retirement
applications.
After the complaint was investigated and complainant was issued the
report of investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ determined that the case was
appropriate for a decision without a hearing, and issued a decision
finding no discrimination. In relevant part, the AJ found that the
Commission did not have jurisdiction over complainant's claim because
complainant and the agency did not have an employment relationship
and complainant was not an applicant for federal employment. The AJ
concluded that the complaint failed to state a claim upon which relief
could be granted under applicable EEO laws, and dismissed the complaint,
pursuant to 29 C.F.R. � 1614.103(c). The agency's final order implemented
the AJ's decision, and complainant filed the instant appeal.
After a review of the record on appeal, we find that the AJ erred in
his determination that the Commission did not have jurisdiction over
complainant's complaint. EEOC Regulation 29 C.F.R. � 1614.107(a)
provides that an agency may dismiss a complaint which fails to state
a claim pursuant to 29 C.F.R. � 1614.103. EEOC Regulation 29 C.F.R. �
1614.103(a) provides that within the covered departments, agencies and
units, Part 1614 applies to all employees and applicants for employment
and to all employment policies or practices affecting employees or
applicants for employment. EEOC Regulation at 29 C.F.R. � 1614.106(a),
provides that a complainant must file a complaint with the agency that
allegedly discriminated against the complainant. In addition, the
U.S. Supreme Court has stated that an employee is aggrieved when some
personal loss or harm has been suffered with respect to a term, condition,
benefit, or privilege of employment. Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 205 (1972).
In Colantuoni v. Office of Personnel Management, EEOC Request No. 05950136
(Sept. 14, 1995) the Commission stated that "[w]e discern no indication
from the . . . Commission's regulations that an employee or applicant
of a federal agency who is negatively affected by an action taken by
another agency . . . lacks standing to file his complaint against
the particular agency which has taken the discriminatory employment
action by which he is allegedly harmed"; see also Warren v. Office
of Personnel Management, EEOC Request No. 05950295 (Aug. 17, 1995)
(ruling that 29 C.F.R. � 1614.106(a) contains "no requirement that the
complainant be either an employee or applicant for employment with the
defendant agency"). As such, complainant was aggrieved when the agency
allegedly delayed processing complainant's retirement application.
Nevertheless, we find complainant's claim should still be dismissed
pursuant to 29 C.F.R. � 1614.107(4) because complainant initially
elected to pursue his appeal rights regarding his disability and his
entitlement to disability retirement with the Merit Systems Protection
Board, see Francis v. Office of Personnel Management, MSBP Appeal
No. DA831E-99-0210-I-1 (June 18, 1999).
The Commission has previously held that the doctrine of collateral
estoppel is applicable to discrimination claims. See Fitz-Gerald
v. TVA, EEOC Request No. 05910573 (January 16, 1992). Furthermore, in
Magnallanes v. Department of Justice, EEOC Request No. 05900176 (July
13, 1990), the Commission noted that the doctrines of res judicata and
collateral estoppel both fall within the purview of " res judicata," each
concerning the preclusive effect of a prior adjudication. As explained
by the Commission in Magnallanes, �. . . collateral estoppel or issue
preclusion recognizes that suits addressed to particular claims may
present issues relevant to suits on other claims. Thus, issue preclusion
bars the re-litigation of issues actually adjudicated and necessary to
the judgment in a prior litigation between the parties.� Id.; see also
Bezelik v. NSA, EEOC Request No. 05A11104, (May 8, 2003). The record
reveals that complainant received a favorable determination from the
MSBP, which awarded him the disability retirement benefits he sought.
Complainant should have raised his claims regarding the agency's delay
and his request for compensatory damages at the time of his appeal to
the MSPB. Accordingly, the agency's final decision dismissing complainant
appeal is affirmed as modified.
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
August 28, 2003
__________________
Date