0520130055
07-16-2014
Complainant v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520130055
Appeal No. 0120122125
Agency No. P-2011-0767
GRANT
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120122125 (August 22, 2012). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
BACKGROUND
In the previous decision, the Commission reversed the Agency's dismissal of Complainant's complaint. Complainant had filed an EEO complaint on November 11, 2011, on the bases of race (African-American), sex (female), disability, and in reprisal for prior protected EEO activity, claiming that she was subjected to harassment from 2002 to 2004, when her evaluation was lowered, she was banned from her workplace, the Agency ordered her to submit to a physical and psychological examination to determine fitness-for-duty, and she was terminated from employment.
On March 6, 2012, the Agency dismissed Complainant's EEO complaint under 29 C.F.R. � 1614.107(a)(1), because Complainant had previously filed a complaint on the same claims, and under 29 C.F.R. � 1614.107(a)(4), because Complainant filed an earlier appeal on these matters with the Merit Systems Protection Board (MSPB). The Agency's dismissal letter stated that Complainant's complaint was identical to the claims raised in her previous EEO complaints, Agency Numbers BOP-2003-0038 and BOP-2005-0009. Complainant first filed an EEO complaint, Agency No. BOP-2003-0038, with the Agency on November 4, 2002; on July 16, 2004, an EEOC Administrative Judge (AJ) issued a decision finding no discrimination. Complainant's second EEO complaint, Agency No. BOP-2005-0009, was dismissed by an EEOC AJ as a "mixed case" complaint. The matters at issue were raised in an appeal with the MSPB, under MSPB Docket Number AT-1221-10-0381-W-1. The MSPB affirmed the Agency's action on March 19, 2010.
The previous decision found that the dismissal of Complainant's complaint should be reversed and the matter remanded to the Agency for further processing. The previous decision stated that Complainant acknowledged that she had previously filed a prior complaint adjudicated by the Commission (EEOC Hearing No. 150-2003-9725X; Agency No. BOP-2003-0038) concerning claims of harassment that occurred before her termination in 2004, i.e., evaluation was lowered; she was banned from her workplace; she was required to undergo a fitness-for-duty examination. It found however, that Complainant's termination claim was not a part of that complaint, and so the claims were not identical and therefore, not the same claim. It noted that the incidents of harassment were offered as support for her claim of wrongful termination.
The previous decision also found that on January 3, 2010, Complainant filed an appeal with the MSPB (Docket No. AT-1221-10-0381-W-1), concerning her termination from employment with the Agency. On March 19, 2010, the MSPB issued an Initial Decision, dismissing the MSPB appeal for lack of jurisdiction. It further found that the record showed that on April 16, 2012, an EEOC AJ dismissed a complaint concerning Complainant's termination (EEOC Hearing No. 510-2012-00197X; Agency No. BOP-2011-0767) for lack of jurisdiction because the matters in this complaint were previously filed with the MSPB. It then concluded that Complainant's claim regarding her termination was improperly dismissed by the AJ, because on March 19, 2010, the MSPB issued a decision finding that it lacked jurisdiction over the issue of Complainant's termination, which rendered the claim no longer a "mixed" complaint. The previous decision concluded that the AJ's dismissal of the matter pursuant to 29 C.F.R. � 1614.107(a)(4) was inappropriate and that the matter concerning Complainant's termination should be remanded back to the AJ for further processing.
ARGUMENTS ON RECONSIDERATION
On request for reconsideration, the Agency contends that the previous decision clearly erred in its interpretation of material fact when it determined that the MSPB's March 19, 2010, dismissal of Complainant's appeal of her termination for lack of jurisdiction rendered her complaint "unmixed" and appropriate to send back to an EEOC AJ for processing. The Agency stated that the MSPB ruled that it did not have jurisdiction over Complainant's termination in MSPB Docket No. AT-1221-10-0381-W-1, because it had already ruled on the matter of Complainant's termination in MSPB Docket No. AT-0752-06-0219-I-1. Complainant had previously filed an appeal with the MSPB challenging her removal on January 3, 2006. Following a hearing on the matter of her removal, an MSPB AJ issued an Initial Decision on April 13, 2006, sustaining her removal, and the Board's decision became final on May 18, 2006 in MSPB Docket No. AT-0752-06-0219-I-1. As such, her second claim before the MSPB on the matter of her termination was therefore barred under the doctrine of res judicata. The Agency provided copies of both MSPB appeal decisions in support of its request for reconsideration.
Complainant submitted a statement in opposition to the Agency's request for reconsideration in which she urged the Commission to deny the Agency's request and to remand her complaint regarding her termination to an EEOC AJ for further processing.
DETERMINATION
Upon review of the file first submitted by the Agency in connection with the initial appeal, we find that the previous decision erred when it found that Complainant's termination claim should be remanded to an EEOC AJ as an unmixed complaint following the MSPB's dismissal of her appeal for lack of jurisdiction. While in many instances, an MSPB dismissal for lack of jurisdiction would then "unmix" a complaint and allow the Commission to assume jurisdiction over the matter that is not the case in this instance. The MSPB dismissed Complainant's January 3, 2010, MSPB appeal for lack of jurisdiction because it had already decided the matter in a decision issued on April 13, 2006. The Agency submitted the MSPB's March 19, 2010, decision in MSPB Docket No. AT-1221-10-0381-W-1 with the complaint file for the initial appeal. The decision of the MSPB clearly stated the reasons for its dismissal for lack of jurisdiction; namely, that the claims had already been adjudicated in the MSPB appeal filed in January 2006, MSPB Docket No. AT-0752-06-0219-I-1. A review of the April 13, 2006, MSPB decision in MSPB Docket No. AT-0752-06-0219-I-1 confirms this. We find that the previous decision erroneously construed the MSPB's dismissal as a dismissal for lack of subject-matter jurisdiction, and improperly remanded the complaint for processing.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120122125 is REVERSED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
July 16, 2014
Date
2
0520130055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
2
0520130055